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REVOLVING CREDIT FACILITY AGREEMENT
Dated as of November __, 1996
among
CALI REALTY, L.P.,
as Borrower,
THE LENDERS PARTIES HERETO,
and
PRUDENTIAL SECURITIES CREDIT CORP.,
as Administrative Agent
$80,000,000
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TABLE OF CONTENTS
ARTICLE I. - DEFINITIONS; ACCOUNTING MATTERS
SECTION 1.01. Certain Defined Terms ............................................
SECTION 1.02. Other Definitional Provisions ....................................
SECTION 1.03. Accounting Terms and Determinations ..............................
ARTICLE II. - COMMITMENTS; LOANS; NOTES; PREPAYMENTS
SECTION 2.01. Loans .........................................................
SECTION 2.02. Borrowings ....................................................
SECTION 2.03. Full Recourse .................................................
SECTION 2.04. Notes .........................................................
SECTION 2.05. Optional Prepayments ..........................................
SECTION 2.06. Mandatory Prepayments; Permanent Reduction of Commitments......
SECTION 2.07. Mandatory Reductions of Commitments............................
SECTION 2.08. Continuation...................................................
SECTION 2.09. Optional Termination or Reduction of Commitments...............
SECTION 2.10. Refinancing of Loans...........................................
SECTION 2.11. Replacement Collateral.........................................
ARTICLE III. - PAYMENTS OF PRINCIPAL AND INTEREST...............................
SECTION 3.01. Repayment of Loans.............................................
SECTION 3.02. Interest.......................................................
SECTION 3.03. Interest Adjustments...........................................
ARTICLE IV. - PRO RATA TREATMENT, PAYMENTS, COMPUTATIONS........................
SECTION 4.01. Pro Rata Treatment and Payments................................
SECTION 4.02. Computations...................................................
SECTION 4.03. Minimum Amounts................................................
SECTION 4.04. Certain Notices................................................
SECTION 4.05. Set-Off........................................................
ARTICLE V. - YIELD PROTECTION, ETC..............................................
SECTION 5.01. Additional Costs...............................................
SECTION 5.02. Illegality.....................................................
SECTION 5.03. Treatment of Affected Loans....................................
SECTION 5.04. Compensation...................................................
SECTION 5.05. Withholding Taxes..............................................
SECTION 5.06. Indemnity......................................................
SECTION 5.07. Duty to Mitigate...............................................
ARTICLE VI. - CONDITIONS PRECEDENT..............................................
SECTION 6.01. Conditions to Initial Loan.....................................
SECTION 6.02. Conditions to Each Loan........................................
ARTICLE VII. - REPRESENTATIONS AND WARRANTIES...................................
SECTION 7.01. Partnership Existence..........................................
SECTION 7.02. Financial Condition............................................
SECTION 7.03. Litigation.....................................................
SECTION 7.04. No Breach......................................................
SECTION 7.05. Partnership Power; Authorization; Enforceable Obligations......
SECTION 7.06. Approvals......................................................
SECTION 7.07. No Default.....................................................
SECTION 7.08. Ownership of Property..........................................
SECTION 7.09. Taxes..........................................................
SECTION 7.10. Use of Credit..................................................
SECTION 7.11. ERISA..........................................................
SECTION 7.12. Investment Company Act.........................................
SECTION 7.13. Public Utility Holding Company Act.............................
SECTION 7.14. Environmental Matters..........................................
SECTION 7.15. True and Complete Disclosure...................................
SECTION 7.16. Labor Matters..................................................
SECTION 7.17. Pledged Partnership Interests..................................
ARTICLE VIII. - COVENANTS OF THE OPERATING PARTNERSHIP..........................
SECTION 8.01. Financial Statements...........................................
SECTION 8.02. Certificates and Other Information.............................
SECTION 8.03. Litigation.....................................................
SECTION 8.04. Conduct of Business, Existence, Etc............................
SECTION 8.05. Payment of Obligations.........................................
SECTION 8.06. Insurance......................................................
SECTION 8.07. Limitation on Liens............................................
SECTION 8.08. ERISA..........................................................
SECTION 8.09. Use of Proceeds................................................
SECTION 8.10. Environmental Laws.............................................
SECTION 8.11. Hazardous Substances...........................................
SECTION 8.12. Claims.........................................................
SECTION 8.13. Maintenance of Ownership.......................................
SECTION 8.14. Indebtedness...................................................
SECTION 8.15. Dividends and Distributions....................................
SECTION 8.16. Assets of Holdings.............................................
SECTION 8.17. Compliance Certification.......................................
ARTICLE IX. - EVENTS OF DEFAULT.................................................
SECTION 9.01 Events of Default..............................................
ARTICLE X. - THE ADMINISTRATIVE AGENT...........................................
SECTION 10.01. Appointment....................................................
SECTION 10.02. Delegation of Duties...........................................
SECTION 10.03. Exculpatory Provisions.........................................
SECTION 10.04. Reliance by Administrative Agent...............................
SECTION 10.05. Notice of Default..............................................
SECTION 10.06. Non-Reliance on Administrative Agent and Other Lenders.........
SECTION 10.07. Reimbursement and Indemnification..............................
SECTION 10.08. Administrative Agent in Its Individual Capacity................
SECTION 10.09. Successor Administrative Agent.................................
SECTION 10.10. Collateral Holder..............................................
ARTICLE XI. - MISCELLANEOUS.....................................................
SECTION 11.01. No Waiver; Cumulative Remedies.................................
SECTION 11.02. Notices........................................................
SECTION 11.03. Expenses.......................................................
SECTION 11.04. Amendments.....................................................
SECTION 11.05. Successors and Assigns.........................................
SECTION 11.06. Assignments and Participations.................................
SECTION 11.07. Adjustments....................................................
SECTION 11.08. Survival.......................................................
SECTION 11.09. Captions.......................................................
SECTION 11.10. Counterparts...................................................
SECTION 11.11. Severability...................................................
SECTION 11.12. Integration....................................................
SECTION 11.13. Governing Law..................................................
SECTION 11.14. Submission to Jurisdiction.....................................
SECTION 11.15. Acknowledgments................................................
SECTION 11.16. Waiver of Jury Trial...........................................
SCHEDULES
Schedule I Commitments
Schedule II Addresses for Notices
Schedule III Excess Qualified Asset Value
EXHIBITS
Exhibit A Form of Promissory Note
Exhibit B Form of Pledge Agreement
Exhibit C Form of Company Pledge Agreement
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Notice of Borrowing
THIS REVOLVING CREDIT FACILITY AGREEMENT dated as of November ______,
1996, is entered into by and among Cali Realty, L.P., a Delaware limited
partnership (the "Operating Partnership"), the several lenders from time to time
parties hereto (the "Lenders"), and Prudential Securities Credit Corp. ("PSC"),
a Delaware corporation, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent").
WHEREAS, the Operating Partnership has requested the Lenders to make
revolving loans to the Operating Partnership for working capital purposes,
including the acquisition or improvement of real property, and other general
purposes of the Operating Partnership, up to an aggregate principal amount at
any one time outstanding equal to $80,000,000, pursuant to and subject to the
terms and conditions set forth herein, and each Lender is willing to make such
loans on and subject to the terms and conditions hereof in the maximum amount
set forth opposite the name of such Lender on Schedule I; and
WHEREAS, to provide assurance for the repayment of the revolving loans
and all other Obligations (as hereinafter defined) of the Operating Partnership
hereunder: (1) the Operating Partnership has agreed to secure the loans by
providing or causing to be provided to the Administrative Agent, for the benefit
of the Lenders, a first priority pledge of: (i) a 99% limited partnership
interest owned by the Operating Partnership in Holdings (as hereinafter defined)
and (ii) a 99% limited partnership interest owned by the Operating Partnership
in the UREs (as hereinafter defined), all pursuant to the Pledge Agreement (as
hereinafter defined); and (2) the Company (as hereinafter defined) has agreed to
secure the loans by providing or causing to be provided to the Administrative
Agent, for the benefit of the Lenders, a first priority pledge of 100% of the
issued and outstanding capital stock of the G.P. Subs (as hereinafter defined)
owned by the Company pursuant to the Company Pledge Agreement (as hereinafter
defined). In taking the pledge of the Pledged Partnership Interests and the
Pledged Stock, Lenders intend that they have the ability, on an Event of Default
by the Operating Partnership, to obtain full and absolute control over the
Subject Property.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the Operating Partnership, the Lenders and the Administrative
Agent hereby agree as follows:
I. ARTICLE I.
DEFINITIONS; ACCOUNTING MATTERS
I.01.Certain Defined Terms. As used herein, the following terms shall
have the following meanings:
"Additional Costs" has the meaning set forth in Section 5.01(a).
"Administrative Agent" means Prudential Securities Credit Corp., a
Delaware corporation (formerly known as Prudential Securities Realty Funding
Corporation), as administrative agent for the Lenders, or any successor
administrative agent approved in accordance with Section 10.09.
"Affiliate" means any Person that directly or indirectly controls, or
is under common control with, or is controlled by, any other Person. As used in
this definition, "control" (including, with its correlative meaning, "controlled
by" and "under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the other Person (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Agreement" means this Revolving Credit Facility Agreement, as amended,
supplemented or otherwise modified from time to time.
"Amortized Leasing Costs" means, for any calendar quarter, the
aggregate amount of all tenant improvement expenses and leasing commissions for
the Subject Property allocated to such calendar quarter obtained by amortizing
all tenant improvement expenses and leasing commissions incurred by the
Operating Partnership or its Subsidiaries for the Subject Property during the
term of this Agreement in accordance with GAAP over the initial lease term of
each lease for which such expenses and commissions were incurred.
"Applicable Lending Office" means, with respect to any of the Lenders
or Reference Banks, the branch or branches (or Affiliate or Affiliates) from
which any loans of such Lender or Reference Bank, as the case may be, are made
or maintained under this Agreement, as designated by, or by notice provided to,
the Administrative Agent from time to time.
"Applicable Margin" means 125 basis points.
"Assignee" means any Lender or any Affiliate thereof, or, with the
consent of the Administrative Agent and the Operating Partnership (which shall
not be unreasonably withheld), any additional lender or financial institution,
who receives an assignment of all or any part of a Lender's rights and
obligations under the Agreement, the Notes and the other Credit Facility
Documents pursuant to Section 11.06.
"Assignment and Acceptance" means an agreement in the form of Exhibit D
hereto, executed by the assignor, assignee and other parties as contemplated
thereby.
"Assumed Debt" means: (i) the indebtedness to be owed by one or more of
the Operating Partnership, Holdings, Holdings-Parcel I or the UREs to
Northwestern Mutual Life Insurance Company and Principal Mutual Life Insurance
Company in the original principal amount of $110,000,000 and having an unpaid
principal balance of $______________ or less on the Closing Date, which is
secured by a first mortgage on the Subject Property (other than the undeveloped
parcels comprising the Subject Property), and (ii) the indebtedness to be owed
by one or more of the Company, the Operating Partnership or Holdings-Parcel I to
U S West Pension Trust, Investment Management Company in the maximum principal
amount of $________________ and having an initial unpaid principal balance of
not more than $________________ on the Closing Date, which is or will be secured
by a first mortgage on fee title to the tract upon which the building known as
Plaza I of the Harborside Financial Center, in Jersey City, New Jersey is
located. Lenders acknowledge that the principal amount of the indebtedness owed
to U S West Pension Trust, Investment Management Company is intended to increase
as the principal balance of the remainder of the Assumed Debt decreases.
"Auditor" means Price Waterhouse LLP or such other "Big Six" accounting
firm as may be acting as the Company's accountants at the time of any
determination to be made by the Auditor, unless Price Waterhouse (or the
Company's other accountants at such time) declines to act as Auditor, in which
event the Auditor shall be one of the "Big Six" accounting firms selected by
Administrative Agent.
"Available Revolving Credit Commitment" means, as to any Lender, at a
particular time, an amount equal to (a) the amount of such Lender's Commitment
at such time less (b) the sum of the aggregate unpaid principal amount at such
time of all Loans made by such Lender pursuant to Section 2.01; collectively, as
to all the Lenders, the "Available Revolving Credit Commitments"; provided,
however, that (A) the Available Revolving Credit Commitment of any Lender shall
not exceed the product of (1) such Lender's Commitment Percentage and (2) the
difference between (I) the total available Commitments and (II) the sum of the
aggregate unpaid principal amount at such time of all outstanding Loans made by
all Lenders pursuant to this Agreement; and (B) the Available Revolving Credit
Commitments shall not exceed the difference between (I) the total available
Commitments and (II) the sum of the aggregate unpaid principal amount at such
time of all outstanding Loans made by all Lenders pursuant to this Agreement.
"Bankruptcy Code" means the Federal Bankruptcy Code of 1978, as amended
from time to time.
"Basle Accord" has the meaning set forth in Section 5.01(c).
"Benefited Lender" has the meaning set forth in Section 11.07.
"Bond Indenture" has the meaning assigned thereto in the Existing
Credit Facility Documents.
"Borrowing" means a borrowing by the Operating Partnership under the
Notes pursuant to the terms of this Agreement.
"Borrowing Date" means any Business Day specified in a notice pursuant
to Section 2.02 as a date on which the Operating Partnership requests the
Lenders to make Loans hereunder.
"Business Day" means any day on which both (a) commercial banks are not
authorized or required to close in New York City, and (b) dealings in Dollar
deposits are carried out in the London interbank market.
"Capitalized Lease" shall mean, with respect to any Person, any lease
or other agreement with respect to the use of Property that, in accordance with
GAAP, must be capitalized on the lessee's or user's balance sheet or the amount
of the liability which, if so capitalized, must be disclosed in a note to such
balance sheet.
"Capitalized Lease Obligation" of any Person shall mean, as of any date
as of which the amount thereof is to be determined, the amount of the liability
capitalized or disclosed (or which should be disclosed), in accordance with
GAAP, on a balance sheet (or in a note to such balance sheet) of such Person in
respect of a Capitalized Lease of such Person.
"Closing Date" means the date on which the conditions precedent to the
making of the Loans as set forth in Section 6.01 shall be satisfied or waived by
the Majority Lenders, on behalf of all Lenders, and the first Advance is made
hereunder, which in no event shall be later than November 30, 1996.
"Collateral" means the Property described in the Pledge Agreement and
the Company Pledge Agreement.
"Collateral Holder" means PSC in its capacity as Administrative Agent
and as custodian of the Collateral under the Pledge Agreement and the Company
Pledge Agreement, and any successor thereto appointed in accordance with Section
10.09.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans to the Operating Partnership in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I hereto, in each case as such amount may be reduced from time
to time in accordance with the provisions of this Agreement, but in no event
shall the Commitments of all the Lenders collectively exceed $80,000,000 in
aggregate principal amount at any one time outstanding; provided, however, that
if the DSCR for the Subject Property as reasonably determined by the
Administrative Agent as of the end of any calendar quarter following receipt by
the Administrative Agent of the financial information for such quarter under
Section 8.01 below is less than 1.4 to 1 (rounded to the nearest one-tenth), the
Commitments will be temporarily reduced on a pro rata basis as provided in
Section 4.01(a) by an amount (rounded to the nearest $1,000,000) which is
sufficient to maintain a DSCR for the Subject Property of not less than 1.4 to 1
(rounded to the nearest one-tenth) in the future. The Commitments of all the
Lenders are herein sometimes referred to as the "Commitments". If the total
Commitments are reduced below $80,000,000 to satisfy the foregoing requirement
relating to the DSCR for the Subject Property and the DSCR for the Subject
Property subsequently increases, the Commitments shall be correspondingly
increased (subject to any other limits or restrictions on the amount of the
Commitments contained herein).
"Commitment Letter" refers to the Commitment Letter, dated as of
September 20, 1996, between the Operating Partnership and PSC, regarding, among
other matters, this Agreement.
"Commitment Percentage" means, as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the aggregate
Commitments (or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender's
Loans then outstanding constitutes of the aggregate principal amount of all
Lenders' Loans then outstanding).
"Commitment Period" has the meaning set forth in Section 2.01.
"Commitment Termination Date" means the earliest to occur of (i) the
Maturity Date, (ii) the Refinance Loan Closing Date for any term loan which
refinances the indebtedness evidenced by this Agreement under Section 2.10,
(iii) such earlier date on which the Commitments shall terminate in accordance
with Article IX, and (iv) the date on which the Commitments are reduced to zero
pursuant to any mandatory prepayment, mandatory reduction or optional
termination or reduction of the Commitment under Article II hereof.
"Company" means Cali Realty Corporation, a Maryland corporation, which
is the sole general partner of the Operating Partnership.
"Company Pledge Agreement" means the pledge agreement between the
Company and the Administrative Agent, substantially in the form of Exhibit C, as
the same may be amended, supplemented or otherwise modified from time to time.
"Contingent Consideration Liability" means the contingent liability of
Holdings which may be due and owing to Harborside Exchange Place Limited
Partnership, a New Jersey limited partnership, its successors and assigns, upon
the future development of certain undeveloped parcels of the Subject Property
pursuant to a certain Contingent Consideration Agreement executed on or about
the date hereof and which is to be reflected on the books and records of
Holdings as a contingent liability in accordance with GAAP.
"Consolidated Subsidiary" means, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired), the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking (including, without limitation, its charter, bylaws or other
organizational documents) to which such Person is a party or by which it or any
of its Property is bound.
"Credit Facility Documents" means this Agreement, the Notes issued
under this Agreement, the Commitment Letter, the Pledge Agreement, the Company
Pledge Agreement and any other ancillary documentation which is required to be
otherwise executed by the Operating Partnership or any Third Party and delivered
to the Administrative Agent in connection with this Agreement, together with any
rider, addendum or amendment thereto, as amended from time to time.
"Debt Service" for the REIT Group, as of a particular determination
date, means the total of all principal and interest payments on Indebtedness of
the REIT Group (including debt service on the Commitments under this Agreement
and the Commitments under the Existing Credit Facility Documents).
"Default" means an Event of Default or any event, act or condition
which merely with notice or lapse of time, or both, would become an Event of
Default.
"Dollars" and "$" means lawful money of the United States of America.
"DSCR for the Subject Property" means, as of a particular determination
date, the debt service coverage ratio for the Subject Property, which shall be
calculated in the following manner: (i) the aggregate net cash flow for the
Subject Property (on a cash basis, after Amortized Leasing Costs and capital
expenses but before debt service on the Assumed Debt or the credit facility
described in this Agreement) for the calendar quarter just ending and the three
(3) immediately preceding calendar quarters, divided by (ii) the actual interest
expense on the Assumed Debt and pro forma debt service on the maximum aggregate
Commitments available under this Agreement (i.e., $80,000,000) for the four (4)
calendar quarters described above, assuming interest accrues on unpaid principal
at the LIBOR Rate (determined on the last business day of the calendar quarter
for which such debt service coverage ratio is being determined using an assumed
Interest Period of one month) plus 125 basis points and interest payments only.
Notwithstanding anything hereinabove to the contrary, the calculation of the
DSCR for the Subject Property shall not include any calendar quarter which ended
prior to the date of this Agreement and such calculation for the first three (3)
quarters ending during the term of this Agreement shall be based on the net cash
flow and debt service for one (1), two (2) and three (3) calendar quarters,
respectively.
"EBITDA" means as to any Person, for any determination period, earnings
before interest, taxes, depreciation and amortization, determined in accordance
with GAAP.
"Environmental Laws" means any and all present and future federal,
state, municipal and local laws, rules, regulations, statutes, ordinances or
codes, common law causes of action, judicial and administrative decisions, and
any orders or decrees of any Governmental Authority, in each case as now or
hereafter in effect, relating to the regulation or protection of the environment
or to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes into the
indoor or outdoor environment, including, without limitations, ambient air,
soil, surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, chemicals
or toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any corporation or trade or business that is a
member of any group of organizations (a) described in Section 414(b) or 414(c)
of the Internal Revenue Code of which the Operating Partnership is a member, and
(b) solely for purposes of potential liability under Section 302(c)(11) of ERISA
and Section 412(c)(11) of the Internal Revenue Code and the Lien created under
Section 302(f) of ERISA and Section 412(n) of the Internal Revenue Code,
described in Section 414(m) or 414(o) of the Internal Revenue Code of which the
Operating Partnership is a member.
"Event of Default" means any of the events specified in Article IX.
"Excess Qualified Asset Value" means, for purposes of determining Net
Worth under this Agreement, the aggregate amount by which the stipulated values
listed on Schedule III for those properties owned by one or more members of the
REIT Group listed on Schedule III exceed the values for such properties
determined under GAAP.
"Existing Collateral" means the Pledged Junior Bonds and the
instruments evidencing the Pledged Junior Bonds, and all interest, cash,
instruments and other Property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Junior Bonds, and any other proceeds of the Pledged Junior Bonds.
"Existing Credit Facility Documents" means the Revolving Credit
Facility Agreement dated August 31, 1994 among the Operating Partnership, the
lenders party thereto and the Administrative Agent as amended from time to time,
and the other Credit Facility Documents (as that term is defined in said
Revolving Credit Facility Agreement), as amended from time to time, pursuant to
which the Pledged Junior Bonds were pledged by the Operating Partnership to the
Administrative Agent, for the benefit of the Lenders.
"Existing Pledge Agreement" means the pledge agreement among the
Operating Partnership, the Company and the Administrative Agent dated August 31,
1994, as the same may be amended, supplemented or otherwise modified from time
to time.
"GAAP" means generally accepted accounting principles in the United
States of America as of the date of the applicable financial report or
determination.
"Governmental Authority" means any federal, state or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"G.P. Subs" means the following corporations: Cali Sub X, Inc., a
Delaware corporation, and Cali Sub XI, Inc., a Delaware corporation, each of
which is the sole general partner of one or more of Holdings, Holdings-Parcel I
and/or the UREs.
"Guaranty Obligation" means all obligations, contingent or otherwise,
of any Person guaranteeing or having the economic effect of guaranteeing in any
manner, whether directly or indirectly, any Indebtedness of any other Person,
including any obligation (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or to purchase (or advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness, (ii) to purchase or lease (or advance or supply funds for the
purchase or lease of) any Property, securities or services for the purpose of
assuring the owner of such Indebtedness of the payment of such Indebtedness, or
(iii) to maintain working capital, equity capital or compliance with any other
financial condition of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or satisfy such condition.
"Hazardous Substances" means, collectively, (a) any petroleum or
petroleum products or by-products, flammable materials, explosives, radioactive
materials, asbestos-containing materials, urea formaldehyde foam insulation, and
transformers or other equipment that contain dielectric fluid containing
polychlorinated biphenyls (PCB's), (b) any infectious, carcinogenic, mutagenic,
or etiologic agents, pesticides, defoliants or any other chemicals or other
materials or substances which are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials" "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import or meaning under any Environmental Law, and (c) any other
chemical or other material or substance, exposure to which is now or hereafter
prohibited, limited or regulated under any Environmental Law.
"Holdings" means Cali Harborside (Fee) Associates L.P., a New Jersey
limited partnership, formed solely for the purpose of acquiring fee title to all
of the Subject Property (which excludes fee title to the tract known as Plaza I
of Harborside Financial Plaza), its successors and permitted assigns.
"Holdings-Parcel I" means Cali Harborside Plaza I (Fee) Associates
L.P., a New Jersey limited partnership, formed solely for the purpose of
acquiring fee title to the tract known as Plaza I of Harborside Financial Plaza
in Jersey City, New Jersey, its successors and permitted assigns.
"Indebtedness" means, for any Person, as of any date as of which the
amount thereof is to be determined, whether secured or unsecured, (a) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (b) all obligations of such Person upon which interest charges are
customarily paid, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such Person,
(d) all obligations of such Person issued or assumed as the deferred purchase
price of Property or services (other than accounts payable to suppliers incurred
in the ordinary course of business and paid within ninety (90) days after the
same are due), (e) all Indebtedness of other Persons to the extent secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any lien or security interest on Property owned
or acquired by such Person, whether or not the obligations secured thereby have
been assumed, (f) all Capitalized Lease Obligations of such Person, (g) all
Guaranty Obligations, (h) obligations of such Person in respect of any Interest
Rate Protection Agreements, and (i) obligations of such Person in respect of
commercial letters of credit, acceptance facilities, drafts or similar
instruments issued or accepted by banks and other financial institutions for the
account of such Person and matured reimbursement obligations in respect of
standby letters of credit.
"Initial Date" means (a) in the case of the Administrative Agent and
each Person who is a Lender as of the date of this Agreement, the date of this
Agreement, and (b) in the case of each other Lender or a Participant, the date
upon which it became a Lender or Participant.
"Interest Deficit" has the meaning set forth in Section 3.03(a).
"Interest Payment Date" means (a) the last day of each Interest Period,
or (b) the Maturity Date, as applicable.
"Interest Period" means, with respect to any Loan, each period
commencing on the date such Loan is made or the day following the last day of
the preceding Interest Period and ending on the numerically corresponding day
(or, if there is no corresponding day, the last day) in the calendar month that
is one, two or three months thereafter (as the Operating Partnership may select
as provided in Section 4.04) except that each Interest Period that commences on
the last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (a) any Interest Period that would otherwise end
after the Maturity Date shall end on the Maturity Date; and (b) each Interest
Period that would otherwise end on a day which is not a Business Day shall end
on the next succeeding Business Day (or, if such next succeeding Business Day
falls in the next succeeding calendar month, on the next preceding Business
Day).
"Interest Rate Protection Agreement" means, for any Person, an interest
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more financial institutions providing for the transfer or mitigation
of interest risks either generally or under specific contingencies. For purposes
hereof, the "credit exposure" at any time of any Person under an Interest Rate
Protection Agreement to which such Person is a party shall be determined in
accordance with the standard methods of calculating credit exposure under
similar arrangements as prescribed from time to time by the Administrative
Agent, taking into account potential interest rate movements and the termination
provisions and notional principal amount and term of such Interest Rate
Protection Agreement.
"Internal Revenue Code" means the Internal Revenue Code of 1986 and the
rules and regulations issued thereunder, as amended from time to time, or any
successor provision thereto.
"Lenders" means the several lenders from time to time parties hereto as
set forth in the recitals of this Agreement.
"LIBOR Base Rate" means, for any Interest Period,
(a) either (i) the arithmetic mean of the offered rates which
the Reference Banks are quoting, as of 11:00 a.m. (London time) on the
relevant LIBOR Determination Date, for United States dollar deposits
having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the Loan to be made by the
Lenders for such Interest Period, at the principal London office of
each of the Reference Banks or those of them (being at least two in
number) at which such offered quotations are, in the reasonable opinion
of the Administrative Agent, being so made, or (ii) if fewer than two
such quotations are provided to the Administrative Agent, the
arithmetic mean of the rates quoted by money center banks in New York,
New York, selected by the Administrative Agent, as of 11:00 a.m. (New
York City time), on the relevant LIBOR Determination Date, for loans in
United States dollars having a term comparable to such Interest Period
and in an amount comparable to the principal amount of the Loan to be
made by the Lenders for such Interest Period to leading European banks
for such Interest Period; or
(b) if (i) on any LIBOR Determination Date the Administrative
Agent is unable to determine the LIBOR Base Rate in the manner provided
in paragraph (a) above, or (ii) setting the LIBOR Rate at the rate
computed based on the determination of LIBOR Base Rate as provided in
paragraph (a) above would be unlawful, then the LIBOR Base Rate for
such Interest Period shall be the LIBOR Base Rate as determined on the
previous LIBOR Determination Date or, in the case of the first LIBOR
Determination Date, the rate determined by the Administrative Agent
subject to reasonable approval of the Operating Partnership.
"LIBOR Determination Date" shall mean the second Business Day preceding
the first day of each Interest Period.
"LIBOR Rate" means, for each Loan and for any Interest Period, a rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined
by the Administrative Agent to be equal to the LIBOR Base Rate for such Loan for
such Interest Period divided by 1 minus the Reserve Requirement, if any, for
such Loan for such Interest Period.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind. For purposes of this Agreement, a Person shall be
deemed to own subject to a Lien any Property that it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease, other title retention agreement (other than an
operating lease) or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction relating to such Property.
"Loan" means each loan by each Lender to the Operating Partnership
under Section 2.01.
"Majority Lenders" means, at any time, Lenders the Commitment
Percentages of which aggregate at least 51%.
"Market Maturity" means a loan term (e.g., 12 months) which is
generally available in the market for interest only term loans or credit
facilities to REITs comparable to the REIT Group at the time such loan is to be
made. In the event of any dispute between the Operating Partnership and the
Lenders with respect to whether any loan term is a Market Maturity, the Auditor
shall make the final determination on such issue, which determination shall be
final and binding on the Operating Partnership and Lender.
"Market Terms" means the loan terms (including, without limitation, the
interest rate, repayment terms, financial and other covenants, default terms,
representations and warranties) which are then available in the market for
unsecured interest only term loans or credit facilities as established by the
Auditor, which terms shall be determined by the Auditor by analyzing the loan
terms for comparable loans made to three (3) to five (5) REITs which are
publicly traded on the New York Stock Exchange and are comparable (in the
Auditor's sole discretion) to the REIT Group, and adjusting said terms based
upon the relative creditworthiness of such REITs and the REIT Group. All costs
and expenses of determining the Market Terms, including Auditor compensation,
shall be borne by the Operating Partnership. The Auditor shall use its best
efforts to determine the Market Terms within thirty (30) days after a request by
Lender.
"Material Adverse Effect" means, with respect to any Person, a material
adverse effect on the consolidated business or consolidated financial condition
of such Person and its Subsidiaries taken as a whole or, in the case of the
Operating Partnership, on the ability of the Operating Partnership to perform
its obligations hereunder.
"Maturity Date" means January 15, 1998, unless the indebtedness
evidenced by this Agreement is extended or refinanced by the Lenders under
Section 2.10 below, in which event said term shall mean either (A) the maturity
date selected by the Majority Lenders under Subsection 2.10(a)(i) if such
indebtedness is extended or refinanced under such subsection or under Subsection
2.10(e)(i), (B) the last day of the Market Maturity selected under Subsection
2.10(d)(B) if such indebtedness is refinanced under such subsection, or (C) June
30, 1998, if such indebtedness is refinanced under Subsections 2.10(e)(ii),
(iii) or (iv).
"Mortgage Indenture" shall have the meaning assigned thereto under the
Existing Credit Facility Documents.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Operating
Partnership and which is covered by Title IV of ERISA.
"Net Worth" means, as of a particular determination date, the Total
Assets of the REIT Group less aggregate total liabilities of the REIT Group
(determined without duplication), all determined in accordance with GAAP (with
total liabilities including all obligations, contingent or otherwise, that in
accordance with GAAP should be classified as liabilities).
"Note" has the meaning set forth in Section 2.04 .
"NYUCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
"Obligations" means the unpaid principal of and interest on the Notes
and all other obligations and liabilities of the Operating Partnership to the
Administrative Agent or the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, the Notes, the other
Credit Facility Documents or the Existing Credit Facility Documents, or any
other document made, delivered or given in connection therewith, whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, after the occurrence of a
Default or Event of Default, all reasonable fees and disbursements of counsel to
the Administrative Agent or any Lender) or otherwise.
"Operating Partnership" means Cali Realty, L.P., a Delaware limited
partnership.
"Operating Partnership Election Period" means the period of time
commencing on October 1, 1997 and continuing through and including October 31,
1997.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means any individual, corporation, company, division of a
corporation, voluntary association, partnership, limited liability company,
joint venture, trust, association, estate, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"Plan" means an employee benefit or other plan established or
maintained by the Operating Partnership that is covered by Title IV or ERISA,
other than a Multiemployer Plan.
"Pledge Agreement" means the pledge agreement between the Operating
Partnership and the Administrative Agent, substantially in the form of Exhibit
B, as the same may be amended, supplemented or otherwise modified from time to
time.
"Pledged Junior Bonds" means all of the Class A-3, Class B, Class C and
Class D Bonds pledged by the Operating Partnership to the Administrative Agent,
for the benefit of the Lenders, pursuant to the Existing Credit Facility
Documents.
"Pledged Partnership Interests" means a 99% limited partnership
interest owned by the Operating Partnership in Holdings and a 99% limited
partnership interest owned by the Operating Partnership in each of the UREs, all
to be pledged to the Administrative Agent as security for the Obligations
pursuant to the Pledge Agreement.
"Pledged Stock" means 100% of the issued and outstanding capital stock
of the G.P. Subs owned by the Company to be pledged to the Administrative Agent
as security for the Obligations pursuant to the Company Pledge Agreement.
"Post-Default Rate" means, in respect of any principal of or interest
on any Loan or any other amount whatsoever payable by the Operating Partnership
under this Agreement or the Notes that is not paid when due (whether at stated
maturity, by acceleration, by optional or mandatory prepayment or otherwise), a
rate per annum during the period from and including the due date of such amount
to but excluding the date on which such amount is paid in full (after as well as
before judgment) equal to (i) for the remainder of the then current Interest
Period for each Loan, 300 basis points in excess of the sum of the LIBOR Rate
plus the Applicable Margin, and (ii) for all periods subsequent to the then
current Interest Period for each Loan, 300 basis points in excess of the sum of
the LIBOR Rate plus the Applicable Margin for a one-month Interest Period.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"PSC" means Prudential Securities Credit Corp. (formerly known as
Prudential Securities Realty Funding Corporation).
"PSC Election Period" means the period of time commencing on September
1, 1997 and continuing through and including September 30, 1997.
"Reference Banks" initially shall be Bank of Tokyo Ltd., Barclay's
Bank, plc, National Westminster Bank plc, and Bankers Trust Company. Each
Reference Bank shall (a) be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, and (b) have an established
place of business in London. If any such Reference Bank should be unwilling or
unable to act as such, or if any Reference Bank in any other way fails to meet
the qualifications of a Reference Bank, the Administrative Agent shall designate
alternative Reference Banks meeting the criteria specified in this paragraph.
The Administrative Agent shall have no liability or responsibility to any Person
for: (1) the selection of any Reference Bank for purposes of determining the
LIBOR Base Rate; (ii) the inability to retain at least four Reference Banks that
is caused by circumstances beyond its reasonable control; (iii) the selection of
any New York or European banks pursuant to clause (a)(ii) of the definition of
"LIBOR Base Rate" for purposes of determining the LIBOR Base Rate; or (iv) the
inability to select such New York or European banks that is caused by
circumstances beyond its reasonable control.
"Refinance Loan Closing Date" means the closing date of any loan which
refinances, or the effective date of any automatic refinance of, the
indebtedness evidenced hereby as described in Section 2.10, which date shall not
be after January 15, 1998 in accordance with the terms of said Section 2.10.
"Register" has the meaning set forth in Section 11.06(d).
"Regulations D, G, T, U and X" mean, respectively, Regulations D, G, T,
U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" means any change after the date of this Agreement
in federal, state or foreign laws or regulations (including, without limitation,
Regulation D) or the adoption or making after such date of any interpretation,
directive, guideline, policy or request applying to a class of banks or other
financial institutions, including the Lenders, of or under any federal, state or
foreign laws or regulations (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"REIT" means a real estate investment trust as defined in the Internal
Revenue Code.
"REIT Group" means the Company and all of its Affiliates.
"Release" means any material release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without limitation,
the movement of Hazardous Substances through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
"Requirement of Law" means, as to any Person, all provisions of any
law, statute, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority of competent jurisdiction, in each case
applicable to or binding upon such Person or any of its Property or to which
such Person or any of its Property is subject.
"Reserve Requirement" means, for any Interest Period for any Loan, the
average maximum rate at which reserves (including, without limitation, any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by the Administrative Agent (as
determined by the Administrative Agent in its sole discretion) against
"Eurocurrency Liabilities" (as such term is used Regulation D); provided,
however, that allocation of such reserves (if any) to the Loans or the
Commitments or the transactions contemplated hereby shall be in the sole
discretion of the Administrative Agent. Without limiting the effect of the
foregoing, the Reserve Requirement shall include any other reserves required to
be maintained by the Administrative Agent (as determined by the Administrative
Agent in its sole discretion) by reason of any Regulatory Change with respect to
(a) any category of liabilities that includes deposits by reference to which the
LIBOR Base Rate for Loans is to be determined as provided in the definition of
"LIBOR Base Rate" in this Section 1.01 or (b) any category of extensions of
credit or other assets that includes Loans.
"Responsible Officer" means the chief executive officer, executive vice
president or the president of the Company or, with respect to financial matters,
the chief financial officer of the Company.
"Secured Parties" has the meaning set forth in the recitals of Exhibits
B and C.
"Securities Act" means the Securities Act of 1933, as from time to time
amended.
"Security Interests" has the meaning set forth in Section 3 of Exhibits
B and C.
"Security Termination Date" has the meaning set forth in Section 19 of
Exhibits B and C.
"Subject Property" means the real property, buildings and other
improvements thereon commonly known as the Harborside Financial Center, Jersey
City, New Jersey (excluding the ground leasehold interest in the building
commonly known as Plaza I currently occupied by Bankers Trust Company and the
fee title to the land on which such building is located which is to be acquired
by Holdings-Parcel I, but including fee title to all of the remainder of
Harborside Financial Center and the ground leasehold interests in Plaza II,
Plaza III and all undeveloped parcels) all of which is to be acquired by
Holdings and/or the UREs.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity (whether now existing or hereafter organized) of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, partnership or
other entity (irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such corporation,
partnership or other entity shall have or might have voting power by reason of
the happening of any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person.
"Taxes" means all non-excluded taxes, levies, imposts, duties, charges,
fees, deductions and withholdings, as set forth in Section 5.05(a).
"Third Party" means any Person who guarantees or pledges collateral to
secure the obligations of the Operating Partnership under this Agreement.
"Total Assets" means, as of a particular determination date, the
aggregate total value of all assets of the REIT Group (determined without
duplication and in accordance with GAAP) plus the Excess Qualified Asset Value.
"Total Debt" means, as of a particular determination date, the
aggregate of (i) all outstanding liabilities of the Company and its Subsidiaries
(including Guaranty Obligations and other contingent liabilities which are
recorded on the Company's consolidated financial statements which are used for
public reporting purposes), including the full outstanding principal amount of
the credit facilities described in this Agreement and the Existing Credit
Facility Documents and (ii) the difference between the maximum amount of the
Commitments which may be used for working capital purposes (i.e., $15,000,000)
and the outstanding balance of the Loans used for working capital purposes.
"Transferee" means any Participant or Assignee as set forth in Section
11.06(f).
"UREs" means the following limited partnerships: Cal-Harbor II & II
Urban Renewal Associates L.P., a New Jersey limited partnership, Cal-Harbor IV
Urban Renewal Associates L.P., a New Jersey limited partnership, Cal-Harbor V
Urban Renewal Associates L.P., a New Jersey limited partnership, Cal-Harbor VI
Urban Renewal Associates L.P., a New Jersey limited partnership, Cal-Harbor So.
Pier Urban Renewal Associates L.P., a New Jersey limited partnership, Cal-Harbor
No. Pier Urban Renewal Associates L.P., a New Jersey limited partnership, and
Cal-Harbor VII Urban Renewal Associates L.P., a New Jersey limited partnership,
each formed solely for the purpose of acquiring a ground leasehold interest in
the Subject Property.
SECTION I.02. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings specified herein when used in the
Notes or the other Credit Facility Documents or any certificate or other
document made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c) The meanings given to terms defined in Section 1.01 and in other
provisions of this Agreement shall be equally applicable to both the singular
and plural forms of such terms.
SECTION I.03. Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters
required to be delivered to the Administrative Agent and Lenders
hereunder shall (unless otherwise disclosed to the Lenders in writing
at the time of delivery thereof) be prepared, in accordance with GAAP
consistently applied throughout the periods involved (except as
otherwise noted therein). All calculations made for the purposes of
determining compliance with this Agreement shall be made by application
of GAAP consistently applied throughout the periods involved (except as
otherwise noted therein).
(b) The Operating Partnership shall deliver to the Lenders at
the same time as the delivery of any annual or quarterly financial
statement under Section 8.01 (i) a description in reasonable detail of
any material variation between the application of accounting principles
employed in the preparation of such statement and the application of
accounting principles employed in the preparation of the next preceding
annual or quarterly financial statements, and (ii) reasonable estimates
of the difference between such statements arising as a consequence
thereof.
ARTICLE II.
COMMITMENTS; LOANS; NOTES; PREPAYMENTS
SECTION II.01. Loans. Subject to the terms and conditions hereof, each
Lender severally agrees, subject to the terms and conditions of this Agreement,
to extend credit to the Operating Partnership by making revolving credit loans
in Dollars ("Loans") to the Operating Partnership from time to time during the
period from and including the date hereof to but not including the Commitment
Termination Date (the "Commitment Period"). Notwithstanding the foregoing, in no
event shall any Loan be made if the amount of such Loan, together with the
outstanding principal balance of all Loans, would exceed the Available Revolving
Credit Commitments. Subject to the terms and conditions of this Agreement,
during the Commitment Period, the Operating Partnership may from time to time
borrow, repay without penalty or premium (other than breakage funding costs) and
reborrow the aggregate amount of the Commitments.
SECTION II.02. Borrowings. The Operating Partnership may borrow under
the Commitments during the Commitment Period on any Business Day; provided,
however, that the Operating Partnership shall give the Administrative Agent
notice of each Borrowing hereunder as provided in Section 4.04. Each notice of a
Borrowing shall be in substantially the form of Exhibit E. Upon receipt of any
such notice from the Operating Partnership, the Administrative Agent shall
promptly notify each Lender of its proportionate share of each Borrowing, the
date of such Borrowing, and the Interest Period applicable thereto. Each Lender
will make the amount of its pro rata share of each Borrowing available to the
Administrative Agent for the account of the Operating Partnership at the office
of the Administrative Agent specified in Section 11.02 prior to 1:00 P.M., New
York City time, on the Borrowing Date requested by the Operating Partnership in
funds immediately available to the Administrative Agent. Such Borrowing will
then be made available to the Operating Partnership on the dates provided herein
by the Administrative Agent crediting the account of the Operating Partnership
on the books of such office with the aggregate of the amounts made available to
the Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
SECTION II.03. Full Recourse.The Obligations, including all Loans made
hereunder, shall be with full recourse to the assets of the Operating
Partnership and its general partner, the Company.
SECTION II.04. Notes
(a) The Loans made by the Lenders shall be evidenced by
promissory notes of the Operating Partnership payable to each Lender in
substantially the form of Exhibit A, dated the date hereof, with
appropriate insertions as to payee, date and principal amount (each a
"Note" and collectively the "Notes"), payable to the order of such
Lender and in a principal amount equal to the amount of the initial
Commitment of such Lender. The outstanding principal balance of each
Loan as evidenced by a Note shall be payable on the Maturity Date,
unless the same becomes due and payable on an earlier date pursuant to
the terms hereof. Each of the Notes will bear interest on the
outstanding principal balance thereof as set forth in Section 3.02
hereof.
(b) The date, amount, interest rate and duration of each
Interest Period of each Loan, and each payment made on account of the
principal thereof, and any continuation thereof, shall be recorded by
each Lender on its books and, prior to any transfer of the Note,
endorsed by each Lender on the schedule attached to and constituting a
part of the Note; provided, however, that the failure of the Lenders to
make any such recordation or endorsement shall not affect the
obligations of the Operating Partnership to make any payment when due
hereunder; provided further, however, that any such recordation or
endorsement shall constitute prima facie evidence of the accuracy of
the information so recorded absent manifest error.
SECTION II.05. Optional Prepayments. Subject to Sections 4.04 and 5.04,
the Operating Partnership shall have the right to prepay any Loan, in whole or
in part, at any time or from time to time without premium or penalty; provided,
however, that the Operating Partnership shall give the Administrative Agent
notice of each such prepayment as provided in Section 4.04 (and, upon the date
specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder). Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. Any prepayment
on other than the last day of an Interest Period therefor shall be subject to
the provisions of Section 5.04. Partial repayments shall be in an aggregate
principal amount of $ 1,000,000 or a whole multiple of $500,000 in excess
thereof. All prepayments shall be accompanied by accrued but unpaid interest on
the principal amount being prepaid to the date of prepayment.
SECTION II.06. Mandatory Prepayments; Permanent Reduction of
Commitments. Subject to Sections 4.04 and 5.04, all proceeds received by the
Company or the Operating Partnership from the sale of unsecured debt instruments
by the Company or the Operating Partnership during any period when any amounts
are outstanding under any of the Notes or when any Lender has an obligation to
fund any Borrowing hereunder, which debt instruments are issued as part of a
public offering and are rated by one or more nationally recognized rating
agencies, shall be paid to the Administrative Agent to reduce the unpaid
principal balance of the Notes (without premium or penalty) on a pro rata basis
as provided in Section 4.01 and shall permanently reduce the Commitments on a
dollar-for-dollar basis. Any such prepayment on other than the last day of an
Interest Period therefor shall be subject to the provisions of Section 5.04. All
prepayments shall be accompanied by accrued but unpaid interest on the principal
amount being prepaid to the date of prepayment.
SECTION II.07. Mandatory Reductions of Commitments. The Operating
Partnership shall, on demand, prepay the Loans in such amounts as shall be
necessary to assure that the aggregate outstanding principal amount of the Loans
shall not at any time exceed the Commitments at such time. All prepayments
hereunder shall be made together with interest accrued on the amount prepaid.
SECTION II.08. Continuation. The Operating Partnership shall have the
right, at any time, upon the expiration of the then current Interest Period with
respect thereto, to continue any Loan or a portion thereof for a successive
Interest Period, subject to the following:
(a) The Operating Partnership shall give the Administrative
Agent prior notice of each continuation, in accordance with Section
4.04 and the applicable provisions of the term "Interest Period" set
forth in Section 1.01, and of the length of the next Interest Period to
be applicable to such Loan; such notice shall be irrevocable and to be
effective must be received by the Administrative Agent on the day
required not later than 10:00 a.m., New York City Time; the
Administrative Agent shall, after it receives notice from the Operating
Partnership, promptly give the Lenders notice of any continuation;
(b) No Event of Default or Default shall have occurred and be
continuing at the time of any continuation of any Loan into a
subsequent Interest Period;
(c) If less than the entire outstanding balance of all Loans
at the time outstanding shall be continued, such continuation shall be
made pro rata among the Lenders in accordance with the respective
principal amounts of the Loans held by the Lenders immediately prior to
such continuation;
(d) The aggregate principal amount of Loans continued as part
of the same Borrowing shall be $1,000,000 or such greater amount which
is an integral multiple of $100,000 or such lesser amount if such
lesser amount is then outstanding;
(e) Accrued interest on the outstanding principal balance of
the Loans (or portion thereof) being continued shall be paid by the
Operating Partnership at the time of continuation;
(f) The Interest Period with respect to a new Loan effected by
a continuation shall commence on the date of the continuation;
(g) Each request for a continuation which fails to state an
applicable Interest Period shall be deemed to be a request for an
Interest Period of one month; and
(h) If no request for a continuation is received by the
Administrative Agent, the Loan or Loans shall be automatically
continued and the next Interest Period shall be of the same length as
the immediately preceding Interest Period.
No continuation of the Loans under this Section 2.08 shall extend
beyond the Maturity Date.
SECTION II.09. Optional Termination or Reduction of Commitments.
(a) Upon notice by the Operating Partnership to the
Administrative Agent in accordance with Section 4.04, the Operating
Partnership may at any time in whole permanently terminate, or from
time to time in part permanently reduce, the Commitments. Each such
reduction shall be in a minimum aggregate principal amount of
$2,000,000 or in multiples of $1,000,000 in excess thereof. The
Commitments once terminated or reduced may not be reinstated.
(b) Simultaneously with such reduction or termination of each
Lender's Commitment, the Operating Partnership shall pay to the
Administrative Agent for the account of each Lender the excess of the
Loans outstanding under such Commitment over the reduced Commitment,
all accrued and unpaid interest thereon and any payments required
pursuant to Section 5.04.
(c) Any reduction of the Commitments pursuant to this Section
shall be applied pro rata to reduce the applicable Commitment of each
Lender as provided in Section 4.01.
SECTION 2.10. Refinancing of Loans.
(a) At any time during the PSC Election Period, and provided
that the indebtedness described in this Agreement has not been paid in
full and Lenders' obligations hereunder terminated, Lenders shall have
the right to notify the Operating Partnership that the Majority
Lenders, on behalf of all Lenders, have elected to extend or refinance
the indebtedness evidenced by this Agreement in accordance with one of
the options described below:
(i) The Majority Lenders, on behalf of all Lenders,
may elect to either: (A) extend the maturity date of the
indebtedness described in this Agreement to a date selected by
the Majority Lenders, on behalf of all Lenders, which date
shall not be earlier than June 30, 1998, in which case the
indebtedness evidenced by this Agreement shall continue in
full force and effect in accordance with its terms through
such extended maturity date and the Collateral and the
Existing Collateral shall continue to secure the indebtedness
evidenced by this Agreement, or (B) refinance the indebtedness
evidenced by this Agreement by extending to the Operating
Partnership either an unsecured interest only term loan or an
unsecured revolving credit facility, at the election of the
Majority Lenders', at Market Terms and having a maturity date
selected by the Majority Lenders, which maturity date shall
not be earlier than June 30, 1998; or
(ii) The Majority Lenders, on behalf of all Lenders,
may elect to have the Administrative Agent act as placement
agent to locate one or more third party lenders to refinance
the indebtedness evidenced by this Agreement with either an
unsecured interest only term loan or an unsecured revolving
credit facility, at the Majority Lenders' election, at Market
Terms, in which case Administrative Agent shall use reasonable
good faith efforts to locate such third party lender(s); such
term loan or credit facility shall have a Market Maturity
selected by the Operating Partnership.
(b) If the Majority Lenders, on behalf of all Lenders, elect
either of the options in Subsection 2.10(a)(i) above, the Operating
Partnership may, within ten (10) days of receipt of notice of Lenders'
election, request in writing that Lenders' attempt to refinance the
indebtedness evidenced by this Agreement through one or more third
party lenders under option (ii) above, in which event (A) Lenders and
the Operating Partnership shall document and prepare for closing of
such extension or refinancing of the indebtedness evidenced under this
Agreement under Subsection 2.10(a)(i) above in accordance with Lenders'
original election, and (B) Lenders shall use reasonable good faith
efforts to locate such third party lender(s); provided, however, that
if Lenders are unable to locate any such third party lender(s) who are
willing to refinance the indebtedness evidenced by this Agreement or
the Operating Partnership and such third party lender(s) are unable to
close on or before January 15, 1998, Lenders and the Operating
Partnership shall proceed with closing pursuant to Lenders' initial
election to extend or refinance.
(c) In the event the Majority Lenders, on behalf of all
Lenders, elect, and closing occurs under, either of the refinance
options (but not the extension) specified in Subsections 2.10(a)(i) and
(ii) above, the term loan or credit facility described in the option
selected by the Majority Lenders shall commence on the Refinance Loan
Closing Date; provided, however, that Lenders' (or any third party
lenders) obligation to fund any such term loan or credit facility shall
be subject to the Operating Partnership's execution and delivery of
such documents and instruments (including any documents and instruments
customarily used in transactions of a similar type) as Lenders or the
third party lenders may reasonably require to document said term loan
or credit facility, which documents and instruments shall contain all
representations, warranties, conditions, covenants, defaults, remedies
and indemnities customarily used in transactions of a similar type, and
closing of such transaction on or before January 15, 1998.
(d) If Lenders do not provide notice to the Operating
Partnership of the Majority Lenders' election to proceed with extension
of the indebtedness evidenced by this Agreement or refinancing of the
indebtedness evidenced under this Agreement on or before the end of the
PSC Election Period, then the Operating Partnership shall have, at any
time during the Operating Partnership Election Period, the right to
notify Lenders that the Operating Partnership has elected to either (A)
terminate this Agreement and fully repay the outstanding balance of
Loans thereunder, or (B) request Lenders to refinance the indebtedness
evidenced by this Agreement with an unsecured interest only term loan
or unsecured revolving credit facility, at the Operating Partnership's
option, to be provided by Lenders on Market Terms, having either a
Market Term fixed or variable interest rate and having a Market
Maturity selected by the Operating Partnership. If the Operating
Partnership either fails to notify Lenders of its election during the
Operating Partnership Election Period or elects to pay in full the
indebtedness evidenced by this Agreement and terminate this Agreement,
the Maturity Date shall be January 15, 1998. If the Operating
Partnership elects to refinance the indebtedness evidenced by this
Agreement as described above, the term loan or credit facility
described above shall commence on the Refinance Loan Closing Date;
provided, however, that Lenders' obligation to fund such term loan or
credit facility shall be subject to the Operating Partnership's
execution and delivery of such documents and instruments (including any
documents and instruments customarily used in transactions of a similar
type) as Lenders may reasonably require to document said term loan or
credit facility, which documents and instruments shall contain all
representations, warranties, conditions, covenants, defaults, remedies
and indemnities customarily used in transactions of a similar type, and
closing of such transaction on or before January 15, 1998.
(e) Notwithstanding anything herein to the contrary:
(i) in the event that the Majority Lenders, on behalf
of all Lenders, elect to extend the indebtedness evidenced by
this Agreement under Subsection 2.10(a)(i)(A) above, but
Lenders and the Operating Partnership do not execute
appropriate documentation to evidence such extension, the
indebtedness evidenced by this Agreement shall be
automatically extended in accordance with Lenders' election
and the Maturity Date shall be the maturity date (which shall
not be earlier than June 30, 1998) selected by the Majority
Lenders;
(ii) in the event that the Majority Lenders, on
behalf of all Lenders, elect to refinance the indebtedness
evidenced by this Agreement under Subsection 2.10(a)(i)(B)
above, but the Operating Partnership and the Lenders do not
execute the required documentation on or before January 15,
1998, then, effective January 15, 1998, the indebtedness
evidenced by this Agreement shall automatically be refinanced
by either an unsecured interest only term loan or an unsecured
revolving credit facility, as applicable in accordance with
the applicable election, on the Market Terms established under
the applicable option of Lenders except that the Maturity Date
shall be June 30, 1998, and the Credit Facility Documents
shall be deemed amended to incorporate the Market Terms;
(iii) in the event that the Majority Lenders, on
behalf of all Lenders, elect to have the Administrative Agent
act as placement agent to refinance the indebtedness evidenced
by this Agreement through one or more third party lender(s)
under Subsection 2.10 (a)(ii) above but the Operating
Partnership and the third party lender(s) are unable to close
such refinancing on or before January 15, 1998, then effective
January 15, 1998, the indebtedness evidenced by this Agreement
shall automatically be refinanced by either an unsecured
interest only term loan or an unsecured revolving credit
facility, as applicable in accordance with the applicable
election, on the Market Terms established under the applicable
option of Lenders except that the Maturity Date shall be June
30, 1998, and the Credit Facility Documents shall be deemed
amended to incorporate the Market Terms; and
(iv) in the event that the Operating Partnership
elects to request the Lenders to refinance the indebtedness
evidenced by this Agreement under Section 2.10(d) above and
the Lenders and the Operating Partnership are unable to close
such refinancing on or before January 15, 1998 (including
execution of all required loan documents and instruments),
then effective as of January 15, 1998, the indebtedness
evidenced by this Agreement shall automatically be refinanced
by either an unsecured interest only term loan or an unsecured
revolving credit facility, as applicable in accordance with
the applicable election, on the Market Terms established under
the applicable option of the Operating Partnership except that
the Maturity Date shall be June 30, 1998, and the Credit
Facility Documents shall be deemed amended to incorporate the
Market Terms.
On the occurrence of any of the events described in Subsections 2.10
(e) (i), (ii), (iii) or (iv) above, Lenders and the Operating
Partnership shall negotiate in good faith to promptly prepare and
execute such documents and instruments (including any documents and
instruments customarily used in transactions of a similar type) as
Lenders may reasonably require to document said term loan or credit
facility or extension (on the terms determined under such subsections),
which documents and instruments shall contain all representations,
warranties, conditions, covenants, defaults, remedies and indemnities
customarily used in transactions of a similar type; provided, however,
that failure of Lenders and the Operating Partnership to agree to or
execute any such documents shall not affect the automatic refinancing
or extension of the indebtedness evidenced by this Agreement as
described above and, in such event, the Credit Facility Documents, as
deemed amended to incorporate the Market Terms, shall govern.
(f) Unless otherwise agreed by the Operating Partnership, any
loan or credit facility extended by Lenders or any third party
lender(s) to refinance the indebtedness evidenced by this Agreement
under any provision of this Section 2.10 will be unsecured and in
connection with such refinancing the Collateral will be released by
Lenders and the Collateral Agent; provided, however, that the foregoing
shall not apply, and the Collateral shall not be released, if the
Lenders elect to extend the maturity date of the Obligations under this
Agreement rather than refinancing the same.
(g) Notwithstanding anything herein to the contrary, Lenders
shall have no obligation to refinance or extend the indebtedness
evidenced by this Agreement or to locate any third party lender(s) to
refinance such indebtedness during any time when any Default or Event
of Default exists and is continuing under this Agreement or the Credit
Facility Documents.
(h) In the event that the Market Terms are to be determined
under this Section 2.10 or in the event of a dispute as to whether a
loan term is at a Market Maturity, Lender shall notify the Auditor and
request that the Auditor make its determination or decision with
respect thereto within a reasonable time after either Lender makes an
election under this Section 2.10 which requires such determination or
Lender is notified by the Operating Partnership of its election
hereunder which requires such determination.
SECTION 2.11. Replacement Collateral. So long as no Default or Event of
Default exists and is continuing under this Agreement or the Credit Facility
Documents, upon the Operating Partnership's written request, the Majority
Lenders will consider (but shall have no obligation to permit) releasing the
Collateral provided that the Operating Partnership (a) offers replacement
collateral acceptable to the Majority Lenders, in their sole discretion, (b)
provides to the Administrative Agent and the Lenders all materials requested by
the Lenders to permit the Lenders to conduct a due diligence review and
evaluation of the proposed replacement collateral, (c) executes all documents
and agreements requested by the Majority Lenders to grant to the Administrative
Agent, for the benefit of the Lenders, a first priority, perfected pledge of and
security interest in such replacement collateral, and (d) pays to the
Administrative Agent for the benefit of Lenders all reasonable out-of-pocket
costs and expenses incurred by the Administrative Agent and Lenders (including,
without limitation, reasonable legal fees and expenses) incurred in connection
with effecting the replacement of the Collateral.
ARTICLE III.
PAYMENTS OF PRINCIPAL AND INTEREST
SECTION III.01. Repayment of Loans. The Operating Partnership agrees to
repay on the Maturity Date the aggregate outstanding principal amount of the
Loans, together with all accrued and unpaid interest thereon and all other
amounts due under the Notes and the other Credit Facility Documents. Repayment
may be made through refinancing of the Loans as provided in Section 2.10 above.
SECTION III.02. Interest.
(a) The Operating Partnership agrees to pay interest on the
unpaid principal amount of each Loan for the period from and including
the date of such Loan to but excluding the date such Loan shall be paid
in full, for each Interest Period relating thereto, at a rate per annum
(computed on the basis set forth in Section 4.02(a)) equal to the LIBOR
Rate for such Loan for such Interest Period plus the Applicable Margin.
(b) Notwithstanding the foregoing, the Operating Partnership
hereby promises to pay interest at the applicable Post-Default Rate on
any principal of or interest on any Loan and on any other amount
payable by the Operating Partnership hereunder or under any Note which
shall not be paid in full when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise), for the period
from and including the due date thereof to and including the date the
same is paid in full (after as well as before judgment).
(c) Accrued interest on each Loan shall be payable on each
Interest Payment Date; provided, however, that interest payable at the
Post-Default Rate shall be payable from time to time on demand.
SECTION III.03. Interest Adjustments.
(a) If the provisions of this Agreement or any Note would at
any time require payment by the Operating Partnership to any Lender of
any amount of interest in excess of the maximum amount then permitted
by the law applicable to any Loan, the interest payments to that Lender
shall be reduced to the extent necessary so that the Lender shall not
receive interest in excess of such maximum amount. If, as a result of
the foregoing, the Lender shall receive interest payments hereunder or
under a Note in an amount less than the amount otherwise provided
hereunder, such deficit (hereinafter called the "Interest Deficit")
will, to the fullest extent permitted by Requirements of Law, cumulate
and will be carried forward (without interest) until the termination of
this Agreement. Interest otherwise payable to a Lender hereunder and
under a Note for any subsequent period shall be increased by the
maximum amount of the Interest Deficit that may be so added without
causing the Lender to receive interest in excess of the maximum amount
then permitted by the law applicable to the Loans.
(b) The amount of the Interest Deficit relating to the Loans
shall be paid in full at the time of any optional prepayment by the
Operating Partnership to the Lenders of all the Loans at that time
outstanding pursuant to Sections 2.05 or 2.06. The amount of the
Interest Deficit relating to the Loans at the time of any complete
payment of the Loans at that time outstanding (other than an optional
prepayment thereof pursuant to Section 2.05 or mandatory prepayment
pursuant to Section 2.06) shall be canceled and not paid.
ARTICLE IV.
PRO RATA TREATMENT, PAYMENTS, COMPUTATIONS
SECTION IV.01. Pro Rata Treatment and Payments.
(a) Each Borrowing by the Operating Partnership from the
Lenders hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment
Percentages of the Lenders. Each payment (including each prepayment) by
the Operating Partnership on account of principal of and interest on
the Loans shall be made pro rata according to the respective
outstanding principal amounts of the Loans then held by the Lenders.
All payments (including prepayments) to be made by the Operating
Partnership hereunder and under the Notes, whether on account of
principal, interest, fees or otherwise, shall be made without
deduction, set off or counterclaim and shall be made prior to 12:00
Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's
office specified in Section 11.02, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt (and, in any event, on
the same Business Day to the extent practicable) in like funds as
received. If any payment on a Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business
Day.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing that such Lender will not
make the amount that would constitute its Commitment Percentage of such
Borrowing available to the Administrative Agent, the Administrative
Agent may assume that such Lender is making such amount available to
the Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Operating Partnership a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon at a rate equal to the Prime Rate (as
defined in the Bond Indenture) until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any
amounts owing under this Section 4.01(b) shall be conclusive in the
absence of manifest error. If such Lender's Commitment Percentage of
such Borrowing is not made available to the Administrative Agent by
such Lender within three (3) Business Days of such Borrowing Date and
the Administrative Agent has made available to the Operating
Partnership all or a portion of the corresponding amount as provided
above, the Administrative Agent shall also be entitled to recover the
amount made available by it with interest thereon at the rate per annum
equal to the Prime Rate (as defined in the Bond Indenture), on demand,
from the Operating Partnership, without prejudice to any rights which
the Operating Partnership or the Administrative Agent may have against
any Lender hereunder; provided, however, that the Administrative Agent
shall not be entitled to recover the amount made available by it with
interest thereon from the Operating Partnership if the Operating
Partnership gives the Administrative Agent seven (7) days advance
notice of the Borrowing. Nothing contained in this Section 4.01(b)
shall relieve any Lender which has failed to make available its ratable
portion of any Borrowing hereunder from its obligation to do so in
accordance with the terms of this Agreement or any claims arising from
said failure, which obligation may be enforced by the Operating
Partnership or the Administrative Agent, as appropriate.
(c) The failure of any Lender to make any Loan to be made by
it on any Borrowing Date shall not relieve any other Lender of its
obligation, if any, hereunder to make its Loan on such Borrowing Date.
(d) The Lenders may (but shall not be obligated to) debit the
amount of any payment that is not made when due to any ordinary deposit
account of the Operating Partnership with the Lenders.
SECTION IV.02. Computations.
(a) Interest shall be computed on the basis of a year of 360
days and the actual number of days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
Other amounts owing hereunder (other than as referred to in the first
sentence hereof) shall be computed on the basis of a year of 360 days
and the actual number of days elapsed (including the first day but
excluding the last day) occurring in the period for which payable. The
Administrative Agent shall as soon as practicable notify the Operating
Partnership and the Lenders of each determination of a LIBOR Rate. Any
change in the interest rate on a Loan resulting from a change in the
Reserve Requirement shall become effective as of the opening of
business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Operating
Partnership and the Lenders of the effective date and the amount of
each such change in interest rate.
(b) The establishment of the LIBOR Base Rate on each LIBOR
Determination Date by the Administrative Agent and the Administrative
Agent's calculation of the rate of interest for the related Interest
Period shall (in the absence of manifest error) be final and binding on
the Operating Partnership and the Lenders. The Administrative Agent
shall make available the then current LIBOR Base Rate to any Lender
upon request. Furthermore, the Administrative Agent shall promptly send
written notice of its determination of the LIBOR Base Rate to the
Operating Partnership prior to the close of business on each LIBOR
Determination Date.
SECTION IV.03. Minimum Amounts. Except for mandatory prepayments made
pursuant to Sections 2.06 and 2.07 and prepayments made pursuant to Section
5.03, and except for Borrowings utilizing the entire unutilized amount of the
Commitments, each Borrowing and partial prepayment of principal of Loans shall
be in an aggregate principal amount at least equal to $1,000,000 or in multiples
of $500,000 in excess thereof (Borrowings or partial prepayments of Loans having
different Interest Periods at the same time hereunder to be deemed separate
Borrowings and prepayments for purposes of the foregoing).
SECTION IV.04. Certain Notices. Written or telephonic (promptly
confirmed in writing) notices by the Operating Partnership of terminations or
reductions of the Commitments and of Borrowings and optional prepayments of
Loans and of the duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Administrative Agent not later than 10:00
a.m., New York time, three (3) Business Days prior to the date of the relevant
termination, reduction, Borrowing or prepayment or the first day of such
Interest Period. Each such notice of termination or reduction of the Commitments
shall specify the amount of such termination or reduction. Each such notice of
Borrowing or optional prepayment shall specify the amount (subject to Section
4.03) of the Loan to be borrowed or prepaid and the date (which shall be a
Business Day) of such proposed Borrowing or prepayment. Each notice of the
duration of an Interest Period shall specify the Loans to which such Interest
Period is to relate. If no election of Interest Period is specified in a notice
of Borrowing, such notice shall be deemed to be a request for an Interest Period
of one month.
SECTION IV.05. Set-Off. In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without prior notice
to the Operating Partnership, any such notice being expressly waived by the
Operating Partnership to the extent permitted by applicable law, upon any amount
becoming due and payable by the Operating Partnership hereunder or under the
Notes (whether at the stated maturity, by acceleration or otherwise) to set-off
and appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Operating Partnership. Each Lender agrees promptly to notify the
Operating Partnership and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
ARTICLE V.
YIELD PROTECTION, ETC.
SECTION V.01. Additional Costs.
(a) The Operating Partnership shall pay directly to the
Administrative Agent for the account of such Lender from time to time
such amounts as the Lender may (in its sole judgment) determine to be
necessary to compensate the Lender for any costs that the Lender
determines are attributable to its making or maintaining of any Loans
or its obligation to make any Loans hereunder, or any reduction in any
amount receivable by the Lender hereunder in respect of any of the
Loans or such obligation (such increases in costs and reductions in
amounts receivable being herein called "Additional Costs"), resulting
from any Regulatory Change that:
(i) subjects any Lender to, or increases the net
amount of, any tax, levy, impost, duty, charge, fee, deduction
or withholding with respect to any Loan, or changes the basis
of taxation of any amounts payable to the Lenders under this
Agreement or the Notes in respect of any of such Loans (other
than taxes imposed on or measured by the overall net income of
the Lender or of the Applicable Lending Office for any of such
Loans by the jurisdiction in which each Lender has its
principal office or such Applicable Lending Office) and other
than changes generally affecting the manner in which the
income of each Lender or its Applicable Lending Office is
subjected to taxation;
(ii) imposes, modifies or deems applicable any
reserve, deposit or similar requirements (other than the
Reserve Requirement utilized in the determination of the LIBOR
Rate for such Loan) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of,
each Lender (including, without limitation, any of such Loans
or any deposits referred to in the definition of "LIBOR Base
Rate" in Section 1.01), or the Commitments; or
(iii) imposes any other condition affecting this
Agreement or the Notes (or any of such extensions of credit or
liabilities) or the Commitments.
If any Lender requests compensation from the Operating Partnership
under this Section 5.01(a), the Operating Partnership may, by notice to
the Administrative Agent (who shall forward it to the Lender), (A)
suspend the obligation of the Lender thereafter to make or continue
Loans, until the Regulatory Change giving rise to such request ceases
to be in effect (in which case the provisions of Section 5.03 shall be
applicable), provided, however, that such suspension shall not affect
the right of the Lender to receive the compensation so requested, or
(B) prepay the Loans in full (subject always to Section 5.04).
(b) Without limiting the effect of the provisions of Section
5.01(a), in the event that, by reason of any Regulatory Change, any
Lender either (i) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of deposits
or other liabilities of the Lender that includes deposits by reference
to which the interest rate on Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of the
Lender that includes Loans, or (ii) becomes subject to restrictions on
the amount of such a category of liabilities or assets that it may
hold, then, if the Lender so elects by notice to the Operating
Partnership (with a copy to the Administrative Agent), the obligation
of the Lender to make Loans hereunder shall be suspended until such
Regulatory Change ceases to be in effect (in which case the provisions
of Section 5.03 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Operating Partnership
shall pay from time to time on request such amounts as each Lender may
determine to be necessary to compensate the Lender for any costs that
it determines are attributable to maintenance by the Lender (or any
Applicable Lending Office) or the Lender's holding company, pursuant to
any law, rule or regulation or any interpretation, guideline, directive
or request (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of any court or
governmental or monetary authority (i) following any Regulatory Change,
or (ii) implementing any risk-based capital guideline or other
requirement (whether or not having the force of law and whether or not
the failure to comply therewith would be unlawful) heretofore or
hereafter issued by any government or governmental or supervisory
authority implementing at the national level the Basle Accord, of
capital in respect of the Commitments or Loans (such compensation to
include, without limitation, an amount equal to any reduction of the
rate of return on assets or equity of any Lender (or any Applicable
Lending Office) or the Lender's holding company to a level below that
which the Lender (or any Applicable Lending Office) or the Lender's
holding company could have achieved but for such law, regulation,
interpretation, directive or request). For purposes of this Section
5.01(c), "Basle Accord" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence
of Capital Measurement and Capital Standards", dated July 1988, as
amended, modified and supplemented and in effect from time to time or
any replacement thereof.
(d) The Administrative Agent shall notify the Operating
Partnership of any event occurring after the date of this Agreement
entitling the Lenders to compensation under Section 5.01(a) or 5.01(c)
as promptly as practicable after the Administrative Agent obtains
actual knowledge thereof. Each Lender will designate a different
Applicable Lending Office for the Loans affected by such event if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of the Lender, be
materially disadvantageous to the Lender; provided, however, that the
Lender shall have no obligation to designate an Applicable Lending
Office located in the United States of America. The Lender will furnish
to the Operating Partnership (through the Administrative Agent) a
certificate setting forth the basis and amount of each request by the
Lender for compensation under Section 5.01(a) or 5.01(c).
Determinations and allocations by the Lender for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to Section
5.01(a) or Section 5.01(b), or of the effect of capital maintained
pursuant to Section 5.01(c), on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to
compensate the Lender under this Section 5.01, shall be conclusive and
binding on the Operating Partnership in the absence of manifest error;
provided, however, that such determinations and allocations are made on
a reasonable basis. The Operating Partnership shall pay to the
Administrative Agent for the account of each such Lender the amounts
shown as due on any such certificate within ten (10) Business Days
after its receipt of the same. No failure on the part of any Lender to
demand compensation under paragraph (a) or (c) above on any one
occasion shall constitute a waiver of its rights to demand compensation
on any other occasion. The protection of this Section shall be
available to each Lender regardless of any possible contention of the
invalidity or inapplicability of any law, regulation or other condition
which shall give rise to any demand by such Lender for compensation
thereunder. This covenant shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable
hereunder.
SECTION V.02. Illegality. Notwithstanding any other provision of this
Agreement, if any change after the date hereof in applicable law, guideline or
order, or in the interpretation thereof by any Governmental Authority charged
with the administration thereof, shall make it unlawful for any Lender to honor
its obligations to make, maintain or continue Loans hereunder, then the Lender
shall promptly notify the Operating Partnership and the Administrative Agent
thereof and the Lender's obligation to make, maintain or continue Loans shall be
suspended until such time as the Lender may again make and maintain Loans (in
which case the provisions of Section 5.03 shall be applicable).
SECTION V.03. Treatment of Affected Loans. If the obligation of the
Lenders to make Loans or to continue Loans shall be suspended pursuant to
Section 5.01 or 5.02, the Operating Partnership may, by notice to the Lenders as
provided in Section 4.04, elect to prepay the Loans in full (subject always to
Section 5.04).
SECTION V.04. Compensation.
(a) The Operating Partnership shall pay to each Lender, upon
the request of the Lender, such amount or amounts as shall be
sufficient (in the reasonable opinion of the Lender) to compensate it
for any loss, cost or expense that the Lender determines is
attributable to:
(i) any payment or mandatory or optional prepayment
of a Loan for any reason (including, without limitation, the
acceleration of the maturity of the Loans pursuant to Article
IX) on a date other than the last day of an Interest Period
for such Loan; or
(ii) any failure by the Operating Partnership for any
reason (including, without limitation, the failure of any of
the conditions precedent specified in Article VI to be
satisfied) to borrow a Loan on the date for such Borrowing
specified in the relevant notice of Borrowing given pursuant
to Section 2.02 or Section 2.08.
Without limiting the effect of the preceding sentence, such
compensation shall include an amount as reasonably determined by the
Lender equal to the excess, if any, of (A) the amount of interest,
computed at a rate equal to the LIBOR Base Rate, that otherwise would
have accrued on the principal amount so paid, prepaid or not borrowed
or continued for the period from the date of such payment, prepayment,
or failure to borrow or continue to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow
or continue, the Interest Period for such Loan that would have
commenced on the date specified for such Borrowing) at the applicable
rate of interest for such Loan provided for herein over (B) the amount
of interest that would have accrued for such period on such principal
amount at a rate per annum equal to the interest component of the
amount the Lender would have bid in the London interbank market for
Dollar deposits of leading banks in amounts comparable to such
principal amount and with maturities comparable to such period (as
reasonably determined by the Lender). Each Lender shall deliver to the
Operating Partnership from time to time one or more certificates
setting forth the amount of such loss (and in reasonable detail the
manner of computation thereof) as determined by such Lender, which
certificates shall be conclusive absent manifest error.
(b) If the Operating Partnership fails to prepay any Loan on
the date specified in any prepayment notice delivered pursuant to
Section 2.05 or 2.06, the Operating Partnership on demand by any Lender
shall pay to the Administrative Agent for the account of such Lender
any amounts required to compensate such Lender for any loss incurred by
such Lender as a result of such failure to prepay, including, without
limitation, any loss, cost or expenses incurred by reason of the
acquisition of deposits or other funds by such Lender to fulfill
deposit obligations incurred in anticipation of such prepayment. Each
Lender shall deliver to the Operating Partnership and the
Administrative Agent from time to time one or more certificates setting
forth the amount of such loss (and in reasonable detail the manner of
computation thereof) as determined by such Lender, which certificates
shall be conclusive absent manifest error.
SECTION V.05. Withholding Taxes.
(a) Unless otherwise provided in this Section 5.05, all
payments made by the Operating Partnership under this Agreement and the
Notes shall be made free and clear of, and without deductions or
withholding for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding, in the case of the
Administrative Agent and each Lender, net income taxes and franchise
taxes and other taxes based upon net income imposed on the
Administrative Agent or such Lender, as the case may be (all such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions
and withholdings being hereinafter called "Taxes"). Subject to clauses
(b) through (e) of this Section 5.05, if any Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any
Lender, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to ensure that (after
payment of all Taxes and any other taxes including income taxes payable
by the Administrative Agent or such Lender by reason of the receipt of
such increased amount in any jurisdiction in which the Administrative
Agent or Lender is subject to tax) the Administrative Agent or such
Lender receives an amount equal to the sum it would have received had
no such withholding been required. Whenever any Taxes are so required
to be withheld by the Operating Partnership, as promptly as possible
thereafter it shall pay such Taxes to the relevant Governmental
Authority and send to the Administrative Agent, for its own account or
for the account of such Lender as the case may be, a certified copy of
an original official receipt received by the Operating Partnership
showing payment thereof. If the Operating Partnership fails to pay any
Taxes when due to the appropriate taxing authority or fails to remit to
the Administrative Agent the required receipts or other required
documentary evidence, the Operating Partnership shall (in addition to
the foregoing) indemnify the Administrative Agent or the Lenders for
any incremental taxes, interest or penalties that may become payable by
the Administrative Agent or any Lender as a result of any such failure.
(b) The Administrative Agent and each Lender shall, prior to
the Closing Date or (if later) the date of the initial Loan for such
Lender, deliver to the Operating Partnership and the Administrative
Agent (i) two copies of a statement that it is incorporated under the
laws of the United States or a state thereof, containing such
information as is required by U.S. Treasury Regulation Section
1.1441-5(b), together with two duly completed copies of Internal
Revenue Service Form W-9 (or successor forms), or (ii) if such Lender
is not incorporated under the laws of the United States or a state
thereof (A) two duly completed copies of United States Internal Revenue
Service Form 1001 (and Form 8306 if required by applicable law) or 4224
or successor applicable form, as the case may be, and (B) Internal
Revenue Service Form W-8 or W-9 or successor applicable form. The
Administrative Agent and each such Lender also agree to deliver to the
Operating Partnership and (in the case of a Lender) the Administrative
Agent two further copies of the said Form 1001 (and Form 8306 if
required by applicable law) or 4224 and Form W-8 or W-9, or successor
applicable forms or other statement, form or manner of certification,
as the case may be, on or before the date that any such statement, form
or other certification expires or becomes obsolete or after the
occurrence of any event requiring a change in or addition to the most
recent statement, form or other certification previously delivered by
it to the Operating Partnership, and such extensions or renewals
thereof as may reasonably be requested by the Operating Partnership or
the Administrative Agent, unless in any such case any change in treaty,
law or regulation has occurred after the Initial Date with respect to
such Lender and prior to the date on which any such delivery would
otherwise be required which renders all such statements, forms or other
certifications inapplicable or which would prevent such Lender from
duly completing and delivering any such statement, form or other
certification with respect to it and such Lender so advises the
Operating Partnership and the Administrative Agent. The Administrative
Agent and each Lender, as the case may be, shall certify (1) in the
case of a Form 1001 or 4224, that it is entitled to receive payments
from the Operating Partnership under this Agreement without deduction
or withholding of any United States federal income taxes, (2) in the
case of a Form W-8 or W-9, that it is entitled to an exemption from
United States backup withholding tax, and (3) in the case of a Form
8306, that is a bona fide resident of the relevant foreign country.
(c) If the Administrative Agent or a Lender receives a refund
in respect of Taxes (whether directly or by way of offset) paid by the
Operating Partnership (for which the Operating Partnership has made
additional payments pursuant to Section 5.05(a) to the Administrative
Agent or such Lender, as the case may be), it shall promptly pay such
refund to the Operating Partnership; provided, however, that the
Operating Partnership agrees to promptly return such refund to the
Administrative Agent or the applicable Lender, as the case may be,
after it receives notice from the applicable Lender that it is required
to repay such refund.
(d) The Operating Partnership shall have no obligation to pay
additional amounts pursuant to clause (a) of this Section 5.05 to the
Administrative Agent or any Lender with respect to Taxes to the extent
that such Taxes or additional amounts result from (i) the failure of
such Lender or the Administrative Agent to comply with its obligations
or agreements under this Section 5.05, or (ii) any representation or
warranty made in any certificate or otherwise by such Lender or the
Administrative Agent pursuant to this Section 5.05 proving to have been
incorrect in any material respect when made.
(e) The agreements in this Section 5.05 shall survive the
termination of this Agreement and the payment of all obligations
payable hereunder.
(f) Each assignee of a Lender's interest in this Agreement in
conformity with Section 11.06 shall be bound by this Section 5.05, so
that such assignee will have all of the obligations and provide all of
the forms and statements and all indemnities, representations and
warranties required to be given under this Section 5.05.
SECTION V.06. Indemnity. The Operating Partnership agrees to indemnify
each Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Operating
Partnership in making a Borrowing of or continuation of Loans after the
Operating Partnership has given a notice requesting the same in accordance with
the provisions of this Agreement, (b) default by the Operating Partnership in
making any prepayment after the Operating Partnership has given a notice thereof
in accordance with the provisions of this Agreement or (c) the making of a
prepayment on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed or continued, for the period from the date of such prepayment
or of such failure to borrow or continue to the last day of such Interest Period
(or, in the case of a failure to borrow or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any), over (ii) the amount of interest
(as reasonably determined by such Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period
with leading lenders in the interbank eurodollar market. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder.
SECTION V.07. Duty to Mitigate.
(a) Each Lender agrees that, as promptly as practicable after
it becomes aware of the occurrence of an event or the existence of a
condition that has caused it to be affected under Section 5.01, 5.02 or
5.05, such Lender shall give notice thereof to the Operating
Partnership and, to the extent so requested by the Operating
Partnership and not inconsistent with such Lender's internal policies,
such Lender shall use reasonable efforts (including reasonable efforts
to change the office in which it is booking the relevant Loan) to
materially reduce any amounts which might otherwise be payable pursuant
to Section 5.01, 5.02 or 5.05; provided, however, that such efforts
shall not cause the imposition on such Lender of any additional costs
or legal or regulatory burdens deemed by such Lender to be material or
otherwise reasonably expected by such Lender to be materially
disadvantageous to it.
(b) If such reasonable efforts pursuant to Section 5.07(a) are
insufficient to eliminate the amounts which are payable pursuant to
Section 5.01, 5.02 or 5.05, as the case may be, then the Operating
Partnership may (but subject in any such case to the payments required
by Section 5.04), provided that there shall exist no Default or Event
of Default, upon at least five (5) Business Days' prior written or
telephonic notice to such Lender and the Administrative Agent, identify
to the Administrative Agent a lending institution (which may be a
Lender) to purchase the Lender's outstanding Loans and Commitment
hereunder and, subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld) and such alternate
lending institution, such Lender shall transfer its Commitment, any
Loans owing to such Lender and the Notes held by such Lender to such
alternate lending institution (at a price not in excess of par)
pursuant to the provisions of Section 11.06(c) and such alternate
lending institution shall become a Lender hereunder. At the time of the
assignment, the Operating Partnership shall pay all accrued interest
and all other amounts (including, without limitation, all amounts
payable under Section 5.01) owing hereunder to the assigning Lender.
ARTICLE VI.
CONDITIONS PRECEDENT
SECTION VI.01. Conditions to Initial Loan. The obligation of each
Lender to make the initial Loan requested to be made by it is subject to the
satisfaction, prior to or concurrently with the making of such Loan, of the
following conditions precedent:
(a) Credit Facility Documents. The Administrative Agent shall
have received (i) this Agreement, executed and delivered on behalf of
the Operating Partnership by a Responsible Officer of the Company; (ii)
for the account of each Lender, a Note conforming to the requirements
hereof and executed on behalf of the Operating Partnership by a
Responsible Officer of the Company; (iii) the Pledge Agreement,
executed and delivered on behalf of the Operating Partnership by a
Responsible Officer of the Company; (iv) the Company Pledge Agreement,
executed and delivered by a Responsible Officer of the Company; and (v)
the Pledged Stock and stock powers relating to the Company Pledge
Agreement.
(b) Partnership Documents and Corporate Documents. The
Administrative Agent shall have received, with a counterpart for each
Lender:
(i) a copy of the Operating Partnership's certificate
of limited partnership, certified as of a recent date by the
Secretary of State of Delaware, together with copies of any
agreements entered into by the Operating Partnership governing
the terms or relative rights of its partnership interests;
(ii) a certificate of such Secretary of State, dated
as of a recent date, as to the good standing of and payment of
taxes by the Operating Partnership which lists the
organizational documents on file in the office of such
Secretary of State;
(iii) a certificate, dated as of a recent date, as to
the good standing of the Operating Partnership issued by the
Secretary of State of each jurisdiction in which the Operating
Partnership is required to be qualified as a foreign
partnership; and
(iv) a copy of the Company's certificate of
incorporation, certified as of a recent date by the Secretary
of State of Maryland;
(v) a certificate of such Secretary of State, dated
as of a recent date, as to the good standing of and payment of
taxes by the Company which lists the organizational documents
on file in the office of such Secretary of State;
(vi) a certificate of the Secretary or Assistant
Secretary of the Company, dated the date of the initial Loan,
and certifying (A) that attached thereto is a true and
complete copy of the partnership agreement of the Operating
Partnership as in effect on the date of such certification,
(B) that attached thereto is a true and complete copy of the
bylaws of the Corporation as in effect on the date of such
certification, (C) that attached thereto is a true and
complete copy of resolutions adopted by the board of directors
of the Company authorizing the Borrowings hereunder, the
execution, delivery and performance in accordance with their
respective terms of this Agreement, the Notes to be executed
by the Operating Partnership, the other Credit Facility
Documents and any other documents required or contemplated
hereunder or thereunder, (D) that the certificate of limited
partnership of the Operating Partnership has not been amended
since the date of the last amendment thereto indicated on the
certificate of the Secretary of State furnished pursuant to
clause (i) above, except to the extent specified in such
Secretary's certificate, (E) that the certificate of
incorporation of the Company has not been amended since the
date of the last amendment thereto indicated on the
certificate of the Secretary of State furnished pursuant to
clause (iv) above, except to the extent specified in such
Secretary's certificate and (F) as to the incumbency and
specimen signature of each officer of the Company executing
this Agreement, the Notes, the other Credit Facility Documents
or any other document delivered by the Operating Partnership
in connection herewith or therewith (such certificate to
contain a certification by another officer of the Company as
to the incumbency and signature of the officer signing the
certificate referred to in this clause (iv)).
(c) Legal Opinions. The Administrative Agent shall have
received the executed legal opinion of Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
counsel to the Operating Partnership, which legal opinion shall cover
such matters incident to the transactions contemplated by this
Agreement as the Administrative Agent may reasonably require.
(d) Pledged Stock. The Pledged Stock and related stock powers
shall have been delivered to the Collateral Holder in accordance with
Section 3 of the Pledge Agreement.
(e) Pledge Notice Letters. Appropriate letters to Holdings and
the UREs notifying such partnerships of the pledge of the Pledged
Partnership Interests to the Administrative Agent.
(f) Federal Reserve Regulations. The Administrative Agent
shall be satisfied that the provisions of Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System will not be
violated by the transactions contemplated hereby.
(g) UCC Financing Statements and UCC Searches, etc. The
Administrative Agent shall have received, in each case in form
satisfactory to it, (i) UCC financing statements executed on behalf of
the Operating Partnership and the Company for filing in all
jurisdictions in which it shall be necessary or desirable to make a
filing in order to provide the Administrative Agent (for the benefit of
the Lenders) with a perfected security interest in the Pledged Stock,
the Pledged Partnership Interests and the other Collateral, and (ii)
UCC searches satisfactory to the Administrative Agent indicating that
no other filings with regard to the Operating Partnership or the
Company are of record in any of such jurisdictions relating to the
Collateral.
(h) Litigation. No litigation shall be pending or threatened
which would be likely to materially and adversely affect the assets,
operations, business, condition, financial or otherwise, or prospects
of the Operating Partnership and its Subsidiaries, taken as a whole, or
which could reasonably be expected to materially adversely affect the
ability of the Operating Partnership to fulfill its Obligations
hereunder or otherwise materially impair the interests in respect
thereof of the Administrative Agent.
(i) Officer's Certificate. The Administrative Agent shall have
received a certificate of a Responsible Officer of the Company dated
the date of the initial Loans, (i) to the effect set forth in clauses
(a), (b) and (c) of Section 6.02, (ii) as to the solvency of the
Company and the Operating Partnership, (iii) stating that all other
conditions precedent to the initial Borrowings are satisfied, and (iv)
such other matters as the Administrative Agent may reasonably request.
(j) Formation of Holdings, Etc./Acquisition of Subject
Property. The Operating Partnership shall have formed or caused to be
formed each of Holdings, Holdings-Parcel I, the UREs, and the G.P.
Subs, with the entire limited partnership interest in Holdings,
Holdings-Parcel I and each of the UREs to be directly owned by the
Operating Partnership, the entire general partnership interest in
Holdings, Holdings-Parcel I and the UREs to be owned by one of the
entities comprising the G.P. Subs, and 100% of the stock of the G.P.
Subs to be owned by the Company. Holdings and the UREs shall
collectively acquire all of the fee and ground leasehold interests in
the Subject Property, and Holdings-Parcel I shall acquire fee title to
Plaza I of Harborside Financial Plaza, prior to or contemporaneously
with the funding of the initial Loan or Loans under this Agreement.
(k) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent may
reasonably request.
(l) Other Matters. All legal matters incident to this
Agreement and the transactions contemplated hereby shall be
satisfactory to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Administrative
Agent.
Promptly following the Closing Date, the Administrative Agent shall deliver to
each Lender a copy of each document, instrument, agreement and certificate
received by it pursuant to this Section 6.01.
SECTION VI.02. Conditions to Each Loan. The obligation of each Lender
to make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the further conditions precedent
that both immediately prior to the making of such Loan and also after giving
effect thereto and to the intended use thereof:
(a) Material Changes, There shall not have been any material
and adverse change with respect to the business, operations, condition
or prospective condition (financial or otherwise), or liabilities of
the Operating Partnership or its Subsidiaries.
(b) Events of Default. There shall not have occurred and be
continuing any Default or Event of Default under this Agreement on the
date of making the Loan or after making the Loan.
(c) Representations and Warranties. Each of the
representations and warranties made by the Operating Partnership in
Article VII or in or pursuant to any Credit Facility Document qualified
as to materiality shall be true and correct in all respects and those
not so qualified shall be true and correct in all material respects, in
each case on and as of the date of the making of such Loan with the
same force and effect as if made on and as of such date.
(d) Security. All Obligations, including all Borrowings under
this Agreement, shall be secured at all times by a perfected first
priority pledge by (i) the Operating Partnership, pursuant to the
Pledge Agreement, in the Pledged Partnership Interests described
therein, (ii) the Company, pursuant to the Company Pledge Agreement, in
the Pledged Stock described therein, and (iii) the Operating
Partnership, pursuant to the Existing Pledge Agreement, in and to the
Existing Collateral.
(e) Notice. The Administrative Agent shall have received a
notice with respect to such Borrowing as required by Section 4.04.
(f) Other. All partnership and corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and the
other Credit Facility Documents shall be reasonably satisfactory in
form and substance to the Administrative Agent, and the Administrative
Agent shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated
hereby or thereby as it shall reasonably request.
Each notice of Borrowing by the Operating Partnership hereunder shall constitute
a representation and warranty by the Operating Partnership that the conditions
contained in this Section 6.02 have been satisfied (both as of the date of such
notice and, unless the Operating Partnership otherwise notifies the Lender prior
to the date of such Borrowing, as of the date of such Borrowing).
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make
the Loans provided for herein, the Operating Partnership hereby represents and
warrants to the Administrative Agent and each Lender that:
SECTION VII.01. Partnership Existence. The Operating Partnership: (a)
is a limited partnership duly organized, validly existing and in good standing
under the laws of the State of Delaware; (b) has all requisite partnership power
and authority, and has all material governmental licenses, authorizations,
consents and approvals, necessary to own its Property and assets and carry on
its business as now being or as proposed to be conducted; (c) is duly qualified
to do business and is in good standing under the laws of each jurisdiction in
which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify would, in the reasonable judgment of
the Operating Partnership, have a Material Adverse Effect on the Operating
Partnership; and (d) is in compliance with all Requirements of Law except to the
extent that all failures to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect on the Operating
Partnership.
SECTION VII.02. Financial Condition.
(a) The combined financial statements and schedules of the
REIT Group dated June 30, 1996 fairly present the combined financial
position of the REIT Group and the results of operations and changes in
financial condition as of the dates and periods therein specified. Such
combined financial statements and schedules have been prepared in
accordance with GAAP consistently applied throughout the periods
involved (except as otherwise noted therein). The balance sheet of the
Company fairly presents the financial position of the Company as of its
date and has been prepared in accordance with GAAP. Neither the
Operating Partnership nor the Company has any material contingent
liability, liability for taxes or other liability not reflected in the
financial statements, except for liabilities incurred in the ordinary
course of business. During the period from July 1, 1996 to and
including the date hereof there has been no sale, transfer or other
disposition by the Operating Partnership or any of its Subsidiaries of
any material part of its business or Property and no purchase or other
acquisition of any business or Property (including any capital stock of
any other Person) material in relation to the consolidated financial
condition of the Operating Partnership and its Subsidiaries at June 30,
1996, except as would have been permitted by this Agreement if it were
then effective. Since July 1, 1996, there has been no development or
event which has had or could reasonably be expected to have a Material
Adverse Effect on the Company, the Operating Partnership or its
Subsidiaries.
(b) The Operating Partnership is not entering into the
arrangements contemplated hereby and by the other Credit Facility
Documents, and does not intend to make any transfer or incur any
obligations hereunder or thereunder, with actual intent to hinder,
delay or defraud either present or future creditors. On and as of the
Closing Date, on a pro forma basis after giving effect to all
Indebtedness (including the Loans incurred and Liens created, or to be
created, in connection therewith) and on the date of each Loan (w) the
Operating Partnership expects that the cash available to the Operating
Partnership and its Subsidiaries on a consolidated basis, after taking
into account all other anticipated uses of the cash of such Person
(including the payments on or in respect of debt referred to in clause
(y) of this Section 7.02(b)), will be sufficient to satisfy all
obligations and liabilities of the Operating Partnership and its
Subsidiaries as they become due; (x) the sum of the present fair
saleable value of the assets of the Operating Partnership and its
Subsidiaries on a consolidated basis will exceed the probable liability
of the Operating Partnership and its Subsidiaries on their debts
(including their Guaranty Obligations); (y) the Operating Partnership
and its Subsidiaries on a consolidated basis will not have incurred and
do not intend to, or believe that they will, incur debts beyond their
ability to pay such debts as such debts mature (taking into account the
timing and amounts of cash to be received by such Person from any
source, and of amounts to be payable on or in respect of debts of such
Person and the amounts referred to in clause (w)); and (z) the
Operating Partnership and its Subsidiaries on a consolidated basis will
have sufficient capital with which to conduct their present and
proposed business and the Property of the Operating Partnership and its
Subsidiaries does not constitute unreasonably small capital with which
to conduct their present or proposed business. For purposes of this
Section 7.02(b), "debt" means any liability on a claim, and "claim"
means (i) right to payment whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed (other than those being disputed in good faith),
undisputed, legal, equitable, secured or unsecured, or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to
a payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured.
SECTION VII.03. Litigation; There are no legal or arbitral proceedings,
or any proceedings by or before any governmental or regulatory authority or
agency, now pending or (to the knowledge of the Operating Partnership)
threatened against or affecting the Operating Partnership, any Subsidiary or any
of their Property which, if adversely determined, would have a Material Adverse
Effect on the Operating Partnership or any Subsidiary or which involve this
Agreement or any of the transactions contemplated thereby.
SECTION VII.04. No Breach; The execution and delivery of this Agreement
and the other Credit Facility Documents, the consummation of the transactions
herein contemplated and compliance with the terms and provisions hereof do not
and will not conflict with or result in a breach of, or require any consent or
constitute a default under, the certificate of limited partnership or
partnership agreement of the Operating Partnership, any Requirement of Law, any
decree of any court or governmental authority or agency, or any agreement or
instrument to which the Operating Partnership is a party or by which it or any
of its Property is bound except any such consent that may have been obtained
prior to the date hereof, and will not result in, or require, the creation or
imposition of any Lien (other than those created pursuant to the Pledge
Agreement) on any of its Property or assets.
SECTION VII.05. Partnership Power; Authorization; Enforceable
Obligations. The Operating Partnership has all necessary partnership power,
authority and legal right to make, execute, deliver and perform its obligations
under this Agreement and the other Credit Facility Documents; the making and
performance by the Operating Partnership of this Agreement and the other Credit
Facility Documents have been duly authorized by all necessary partnership action
on its part (including, without limitation, any required shareholder approvals);
and this Agreement, the Pledge Agreement and the other Credit Facility Documents
have been duly and validly executed and delivered by the Operating Partnership
and constitute, and each Note when executed and delivered by the Operating
Partnership for value will constitute, its legal, valid and binding obligation,
enforceable against the Operating Partnership in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights, and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION VII.06. Approvals; No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or regulatory
authority or agency or any securities exchange are necessary for the making and
performance by the Operating Partnership of this Agreement and the other Credit
Facility Documents or for the legality, validity or enforceability thereof that
have not been made or obtained (other than any filings required for the
perfection of the security interests under the Pledge Agreement and which the
Operating Partnership will cause to be made in accordance with the Pledge
Agreement). There does not exist any judgment, order, injunction or other
restraint issued or filed or hearing seeking injunctive relief or other
restraint pending or noticed with respect to the making of Loans by the Lenders,
the performance by the Operating Partnership under any of the related documents
to which they are or will be a party or any of the transactions contemplated
thereby.
SECTION VII.07. No Default; Neither the Operating Partnership nor any
of its Subsidiaries is in default under or with respect to any of their
Contractual Obligations in any respect, or with respect to any order, writ,
injunction, decree, rule or regulation of any Governmental Authority, which
default could reasonably be expected to have a Material Adverse Effect on the
Operating Partnership or its Subsidiaries. As of the Closing Date, and as of the
date of each Loan, no Default or Event of Default has occurred and is
continuing.
SECTION VII.08. Ownership of Property; Each of the Operating
Partnership and its Subsidiaries has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other Property, except to
the extent that all failures to have such good title and valid leasehold
interests could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect on the Operating Partnership or its Subsidiaries.
SECTION VII.09. Taxes; Each of the Operating Partnership and its
Subsidiaries has filed or caused to be filed all material tax returns which, to
the knowledge of the Operating Partnership, are required to be filed by them (or
extensions of time to file such returns have been obtained) and have paid all
taxes shown to be due and payable on said returns or on any assessments made
against them or any of their Property and all other taxes, fees or other charges
imposed on them or any of their Property by any Governmental Authority (other
than any the amount or validity of which are being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Operating Partnership or its
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Operating Partnership, no claim is being asserted in writing
with respect to any such tax, fee or other charge which, if foreclosed upon or
adversely determined, as the case may be, would have a Material Adverse Effect
on the Operating Partnership or its Subsidiaries.
SECTION VII.10. Use of Credit; The Operating Partnership is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing any "margin stock" as such term is defined
in Regulation U. No part of the proceeds of any Loans will be used for
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U as now and from time to time
hereafter in effect or for any purpose which violates the provisions of
Regulations G, T, U or X or other regulations of the Board of Governors of the
Federal Reserve System. If requested by any Lender or the Administrative Agent,
the Operating Partnership will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the requirements
of FR Form U-1 referred to in said Regulation U.
SECTION VII.11. ERISA; Each of the Operating Partnership and its
Subsidiaries is in compliance in all material respects with the provisions of
ERISA and the Internal Revenue Code applicable to Plans. Each Plan, and, to the
knowledge of the Operating Partnership, each Multiemployer Plan, is in
compliance in all material respects with, and has been administered in all
material respects in compliance with, the applicable provisions of ERISA, the
Internal Revenue Code and any other federal or state law. No event or condition
has occurred and is continuing as to which the Operating Partnership or any
Subsidiary would be under an obligation to furnish a report to the Lenders under
Section 8.08 hereof. No liability to the PBGC that is material to the Operating
Partnership and its Subsidiaries taken as a whole has been, or to the Operating
Partnership's best knowledge is reasonably expected to be, incurred with respect
to any Plan.
SECTION VII.12. Investment Company Act; The Operating Partnership is
not, and will not during the term of this Agreement be, an "investment company,"
or a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended. The Operating Partnership is not
subject to regulation under any foreign, federal, state or local statute or
regulation which limits its ability to incur Indebtedness.
SECTION VII.13. Public Utility Holding Company Act; The Operating
Partnership is not, and will not during the term of this Agreement be, a
"holding company," or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION VII.14. Environmental Matters; Each of the Operating
Partnership and its Subsidiaries has obtained all environmental, health and
safety permits, licenses and other authorizations required under all
Environmental Laws to carry on their business as now being or as proposed to be
conducted, except to the extent failure to have any such permit, license or
authorization would not in the reasonable judgment of the Operating Partnership
have a Material Adverse Effect on the Operating Partnership or its Subsidiaries.
Each of such permits, licenses and authorizations is in full force and effect
and each of the Operating Partnership and its Subsidiaries is in compliance with
the terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any plan, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply
therewith would not in the reasonable judgment of the Operating Partnership have
a Material Adverse Effect on the Operating Partnership or its Subsidiaries.
In addition, except as previously disclosed in writing to the
Administrative Agent and the Lenders or as disclosed in writing to the Lenders
from time to time, (i) no notice, notification, demand, request for information,
citation, summons or order has been issued, (ii) no complaint has been filed,
(iii) no penalty has been assessed, and (iv) no investigation or review is
pending or threatened by any governmental or other entity, with respect to any
alleged failure by the Operating Partnership or any Subsidiary to have any
environmental permit, license or other authorization required under any
Environmental Law in connection with the conduct of the business of the
Operating Partnership or any Subsidiary or with respect to any generation, use,
treatment, storage, recycling, transportation, discharge or disposal, or any
Release or threatened Release of any Hazardous Substances generated by the
Operating Partnership or any Subsidiary.
SECTION VII.15. True and Complete Disclosure; The information, reports,
financial statements, exhibits and schedules furnished by or on behalf of the
Operating Partnership to the Lenders in connection with the negotiation,
preparation or delivery of this Agreement or included herein or delivered
pursuant hereto, when taken as a whole, do not contain any untrue statement of
material fact or omit to state any material fact necessary to make the
statements herein or therein, in light of the circumstances under which they
were made, not misleading. All written financial information furnished after the
date hereof by the Operating Partnership to the Lenders in connection with this
Agreement and the transactions contemplated hereby will be true, complete and
accurate in every material respect, or (in the case of projections) based on
estimates believed by the Operating Partnership in good faith to be reasonable,
on the date as of which such information is stated or certified. There is no
fact known to the Operating Partnership that would, in the reasonable opinion of
the Operating Partnership, have a Material Adverse Effect on the Operating
Partnership or its Subsidiaries that has not been disclosed herein or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Lenders for use in connection with the transactions
contemplated hereby.
SECTION VII.16. Labor Matters; Neither the Operating Partnership nor
any of its Subsidiaries has experienced any strike, labor dispute, slowdown or
work stoppage due to labor disagreements which has had a Material Adverse Effect
on the respective businesses of the Operating Partnership and its Subsidiaries
taken as a whole, and to the best knowledge of the Operating Partnership, there
is no such strike, dispute, slowdown or work stoppage threatened against the
Operating Partnership or any of its Subsidiaries.
SECTION VII.17. Pledged Partnership Interests
(a) The Operating Partnership (i) is the legal and beneficial
owner of, and has sole right, title and interest to, the Pledged Partnership
Interests, (ii) will on the Closing Date own all the Pledged Partnership
Interests free of all Liens, and (iii) has sole right and power to pledge, and
grant the Lien upon such Pledged Partnership Interests pursuant to the Pledge
Agreement.
(b) The Pledged Partnership Interests have been duly
authorized and validly issued and are fully paid and nonassessable.
(c) Upon delivery to the Administrative Agent of the
certificates, if any, evidencing the Pledged Partnership Interests in existence
on the Closing Date and the filing of financing statements in the appropriate
filing offices, the pledge hereunder will create in favor of the Administrative
Agent for the benefit of the Lenders a valid, binding and enforceable (subject,
as to enforcement, to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and to general principles of equity) security interest in and lien
upon such Pledged Partnership Interests and constitute a fully perfected first
and prior security interest in and lien upon all right, title and interest of
the Operating Partnership in such Pledged Partnership Interests.
ARTICLE VIII.
COVENANTS OF THE OPERATING PARTNERSHIP
The Operating Partnership hereby covenants and agrees that, so long as
the Commitments remain in effect and any Note or Loan remains outstanding, and
until payment in full of all amounts payable by the Operating Partnership to any
Lender or the Administrative Agent hereunder:
SECTION VIII.01. Financial Statements The Operating Partnership shall
deliver to the Administrative Agent and to each Lender:
(a) as soon as available, but in any event within forty-five
(45) days after the end of each of the first three quarterly fiscal periods of
each fiscal year of the Operating Partnership, (i) separate financial statements
for the Subject Property, including a balance sheet, an income and expense
statement, a reconciliation of surplus, occupancy percentages and such other
statements as may be required by the Administrative Agent, prepared in
accordance with GAAP, and (ii) consolidated financial statements of the Company,
the Operating Partnership and their Consolidated Subsidiaries as filed with the
Securities and Exchange Commission, including supplemental schedules of separate
consolidating balance sheets and income and expense statements for each of the
Company, the Operating Partnership and their Consolidated Subsidiaries, a
schedule showing the depreciated basis (determined under GAAP) for each of the
assets listed on Schedule III, and such other statements as may be required by
the Administrative Agent, accompanied by a certificate of a Responsible Officer
of the Company, which certificate shall state that said financial statements
fairly present the consolidated financial condition and results of operations of
the Company, the Operating Partnership and their Consolidated Subsidiaries, in
accordance with GAAP, consistently applied (without prejudice to any change made
in accordance with the provisions of Section 1.03), as at the end of, and for,
such period (subject to normal year-end audit adjustments);
(b) as soon as available, but in any event within ninety (90)
days after the end of each fiscal year of the Operating Partnership, (i)
separate financial statements for the Subject Property, including a balance
sheet, an income and expense statement, a reconciliation of surplus, occupancy
percentages and such other statements as may be required by the Administrative
Agent, prepared in accordance with GAAP, and (ii) consolidated financial
statements of the Company, the Operating Partnership and their Consolidated
Subsidiaries as filed with the Securities and Exchange Commission, including
supplemental schedules of separate consolidating balance sheets and income and
expense statements for each of the Company, the Operating Partnership and their
Consolidated Subsidiaries, a schedule showing the depreciated basis (determined
under GAAP) for each of the assets listed on Schedule III, and such other
statements as may be required by the Administrative Agent, accompanied by a
report and opinion thereon by Price Waterhouse or another independent certified
public accountant of recognized national standing acceptable to the
Administrative Agent which report shall (A) be unqualified as to going concern
and scope of audit, (B) state that said financial statements fairly present the
consolidated financial condition and results of operations of the Company, the
Operating Partnership and their Consolidated Subsidiaries as at the end of, and
for, such fiscal year in accordance with GAAP, and (C) contain no material
exceptions or qualifications except for qualifications relating to accounting
changes (with which such independent public accountants concur) in response to
FASB releases or other authoritative pronouncements.
(c) as soon as available, but in any event within forty-five
(45) days after the end of each calendar month, a true, complete and correct
cash flow statement with respect to the Subject Property in the form of Exhibit
B to the Mortgage Indenture showing (x) all cash receipts of any kind whatsoever
and all cash payments and disbursements, and (y) year-to-date summaries of such
cash receipts, payments and disbursements, together with a certification of the
Operating Partnership stating that (i) such cash flow statement is true,
complete and correct in all material respects and (ii) all operating expenses
with respect to the Subject Property which have accrued and have been billed to
the Operating Partnership or any of its Subsidiaries as of the last day of the
month preceding the month for which foregoing information is applicable have
been fully paid or otherwise provided for by the Operating Partnership or its
Subsidiaries.
(d) on a quarterly basis, a true, complete and correct rent
roll for the Subject Property, identifying each tenant, the expiration date of
such tenant's lease, the space covered by such lease, all extension, renewal,
termination or expansion rights, if any, of such tenant and any portion of the
Subject Property demised to such tenant, if any, which is not occupied for the
conduct of business by such tenant or any subtenant of such tenant, together
with a certificate of the Operating Partnership, dated as of the date of
delivery of such rent roll, certifying that such rent roll is true, correct and
complete in all material respects as of its date.
All such financial statements under (a) and (b) above shall be complete and
correct in all material respects and shall be prepared in reasonable detail and
in accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
SECTION VIII.02. Certificates and Other Information; The Operating
Partnership shall deliver to the Administrative Agent and to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 8.01(b), a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 8.01(a) and 8.01(b), a certificate of a Responsible
Officer of the Company stating that, to the best of such Responsible Officer's
knowledge, the Operating Partnership and each of its Subsidiaries has during
such period observed or performed all of its covenants and other agreements, and
satisfied every condition, in all material respects, contained in this
Agreement, the Notes and the other Credit Facility Documents to which it is a
party to be observed, performed or satisfied by it, and that no Default or Event
of Default has occurred or is continuing except as specified in such
certificate;
(c) promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available by the Operating Partnership or any of its Subsidiaries to its
partners generally, of all regular and periodic reports and all registration
statements and prospectuses, if any, filed by any of them with any securities
exchange or with the Securities and Exchange Commission, or any comparable
foreign bodies, and of all press releases and other statements made available
generally by any of them to the public concerning material developments in the
business of the Operating Partnership or any of its Subsidiaries; and
(d) promptly upon any executive officer of the Company obtaining
knowledge (i) of any Default, or becoming aware that any Lender has given notice
or taken any other action with respect to a claimed Event of Default or (ii)
that any Person has given any notice to the Operating Partnership or taken any
other action with respect to a claimed default or event or condition of the type
referred to in paragraph (b) of Article IX or any condition or event which would
be required to be disclosed in a current report filed by the Operating
Partnership with the Securities and Exchange Commission on Form 8-K (other than
Item 5 as in effect on the date hereof) if the Operating Partnership were
required to file such reports under the Securities Exchange Act of 1934, as
amended, or the rules and regulations thereunder (or any successor thereof), a
certificate of the president or chief financial officer of the Company
specifying the nature and period of existence of any such condition or event, or
specifying the notice given or action taken by such holder or Person and the
nature of such claimed Event of Default or condition and what action the
Operating Partnership has taken, is taking and proposes to take with respect
thereto.
SECTION VIII.03. Litigation; The Operating Partnership will promptly
give to the Lenders notice of all legal or arbitral proceedings, and of all
proceeding by or before any governmental or regulatory authority or agency, and
any material development in respect of such legal or other proceedings,
affecting the Operating Partnership or any of its Subsidiaries, except
proceedings which, if adversely determined, would not, in the reasonable
judgment of the Operating Partnership, have a Material Adverse Effect on the
Operating Partnership or its Subsidiaries.
SECTION VIII.04. Conduct of Business, Existence, Etc.; The Operating
Partnership will, and will cause each of its Subsidiaries to:
(a) continue to engage in business of the same general type as
now conducted by it; do or cause to be done all things necessary to preserve,
renew and maintain in full force and effect its legal existence; and take all
reasonable action to maintain all rights, privileges, licenses and franchises
necessary or desirable in the normal conduct of its business, except such
rights, privileges, licenses and franchises with respect to which the failure to
maintain could not, individually or in the aggregate, have a Material Adverse
Effect on the Operating Partnership or its Subsidiaries;
(b) comply with all Contractual Obligations and Requirements
of Law if the failure to comply with such requirements would reasonably be
expected to have a Material Adverse Effect on the Operating Partnership or its
Subsidiaries;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except for any
such tax, assessment, charge or levy the payment of which is being contested in
good faith and by proper proceedings and against which any reserves required by
GAAP are being maintained or the failure to pay or discharge which would not, in
the reasonable judgment of the Operating Partnership, have a Material Adverse
Effect on the Operating Partnership or its Subsidiaries;
(d) maintain all of its Property used or useful in its
business in good working order and condition, ordinary wear and tear excepted,
if failure to so maintain such Property would have a Material Adverse Effect on
the Operating Partnership or its Subsidiaries, and, from time to time (i) make
all necessary and proper repairs, renewals, replacements, additions and
improvements thereto, and (ii) comply at all times with the provisions of all
material leases and other material agreements to which it is a party so as to
prevent any loss or forfeiture thereof or thereunder;
(e) keep proper records and books of account, in which full,
true and complete entries in conformity with GAAP consistently applied and in
accordance with all Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and
(f) permit, upon reasonable notice, representatives of the
Administrative Agent and any Lender, during normal business hours, to examine,
copy and make extracts from its books and records, to inspect any of its
Property, and to discuss its business and affairs with its officers and
independent certified accountants, all to the extent reasonably requested by the
Lenders; provided, however, that to the extent any of such information (not
including information provided pursuant to Sections 8.01 and 8.02) is defined as
"Confidential Information" in the Mortgage Indenture, the Operating Partnership
may require that the Administrative Agent and any Lender keep such information
confidential; provided further, however, that the Administrative Agent and any
Lender may disclose all or part of such information to a third party, provided
that such third party agrees to keep the same confidential and not to use such
information for competitive purposes.
SECTION VIII.05. Payment of Obligations; The Operating Partnership
will, and will cause each Subsidiary to, pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, under the terms of each mortgage, indenture,
security agreement, other debt instrument and contract and agreement by which it
is bound or to which it is a party or subject, except (a) where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Operating Partnership or its Subsidiaries, as the
case may be, (b) where the failure to pay such obligations could not,
individually or in the aggregate, have a Material Adverse Effect on the
Operating Partnership or its Subsidiaries, or (c) for trade and other accounts
payable in the ordinary course of business in accordance with customary trade
terms and which are not overdue for a period of more than ninety (90) days (or
any longer period if longer payment terms are accepted in the ordinary course of
business) or, if overdue for more than ninety (90) days (or such longer period),
as to which a dispute exists and adequate reserves in conformity with GAAP have
been established on the books of the Operating Partnership and its Subsidiaries,
as the case may be.
SECTION VIII.06. Insurance; The Operating Partnership will, and will
cause its Subsidiaries to, keep insured by responsible insurers all Property of
a character usually insured by corporations or partnerships engaged in the same
or similar business similarly situated against loss or damage of the kinds and
in the amounts customarily insured against by such corporations or partnerships
and carry such other insurance as is usually carried by such corporations or
partnerships. The Operating Partnership will furnish to the Administrative
Agent, upon written request, full information as to the insurance carried, and
will advise the Administrative Agent promptly of any policy cancellation,
reduction or amendment.
SECTION VIII.07. Limitation on Liens; The Operating Partnership will
not, nor will it permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon (i) the Subject Property except for Liens securing
the portion of the Assumed Debt due to Northwestern Mutual Life Insurance
Company and Principal Mutual Life Insurance Company, and (ii) the Collateral
described in the Pledge Agreement, except in favor of the Administrative Agent,
for the benefit of Lenders.
SECTION VIII.08. ERISA.; The Operating Partnership shall deliver to the
Administrative Agent as soon as possible, and in any event within ten (10) days
after the Operating Partnership knows or has reason to believe that any of the
events or conditions specified below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by a senior financial officer of
the Operating Partnership setting forth details respecting such event or
condition and the action, if any, that the Operating Partnership or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any report or
notice required to be filed with or given to PBGC by the Operating Partnership
with respect to such event or condition):
(a) any reportable event as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan, as to which
PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within thirty (30) days of the occurrence of such event
(provided, however, that a failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code or Section 302 of ERISA, including,
without limitation, the failure to make on or before its due date a required
installment under Section 412(m) of the Internal Revenue Code or Section 302(e)
of ERISA, shall be a reportable event regardless of the issuance of any waivers
in accordance with Section 412(d) of the Internal Revenue Code); and any request
for a waiver under Section 412(d) of the Internal Revenue Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by the Operating Partnership
or an ERISA Affiliate to terminate any Plan;
(c) the institution by PBGC of proceedings under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by the Operating Partnership or any ERISA Affiliate of
a notice from a Multiemployer Plan that such action has been taken by PBGC with
respect to such Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer
Plan by the Operating Partnership or any ERISA Affiliate that results in
liability under Section 4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of a purchaser default) or the receipt
by the Operating Partnership or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated
under Section 4041A of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Operating Partnership or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within thirty
(30) days; and
(f) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Internal Revenue Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such Plan is a
part if the Operating Partnership or an ERISA Affiliate fails to timely provide
security to the Plan in accordance with the provisions of said Sections.
SECTION VIII.09. Use of Proceeds; The Operating Partnership will use
the proceeds of Borrowings hereunder solely for working capital purposes,
including the acquisition or improvement of real property, and other general
purposes of the Operating Partnership, including capital expenditures and tenant
improvements; provided, however, that (i) the Lenders shall have no
responsibility as to the use of any of such proceeds, (ii) proceeds of
Borrowings to be used for any purpose other than property acquisitions and
improvements will be limited to $15,000,000 in the aggregate outstanding at any
one time without the prior written consent of the Administrative Agent (which
consent shall not be unreasonably withheld), and (iii) proceeds of Borrowings
will not be used to pay any dividends or distributions.
SECTION VIII.10. Environmental Laws. The Operating Partnership shall:
(a) promptly notify the Administrative Agent upon any
executive officer of the Operating Partnership becoming aware of any violation
or threatened violation or non-compliance with, or liability or threatened
liability under any Environmental Laws which, when taken together with all other
pending violations could reasonably be expected to have a Material Adverse
Effect on the Operating Partnership and its Subsidiaries taken as a whole, and
promptly furnish to the Administrative Agent all notices of any nature which the
Operating Partnership may receive from any Governmental Authority or other
Person with respect to any violation, or threatened violation or non-compliance
with, or liability or threatened liability under any Environmental Laws which,
in any case or when taken together with all such other notices, could reasonably
be expected to have a Material Adverse Effect on the Operating Partnership or
its Subsidiaries;
(b) comply with and use reasonable efforts to ensure
compliance by all tenants and subtenants with all Environmental Laws, and obtain
and comply in all material respects with and maintain and use best efforts to
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain any and all licenses, approvals, registrations or
permits required by Environmental Laws;
(c) conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required of the
Operating Partnership or its Subsidiaries under all Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities; and
(d) defend, indemnify, protect and hold harmless the
Administrative Agent and the Lenders, and their respective employees, agents,
officers and directors (each, an "Indemnified Person"), from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, defenses,
judgments, suits, proceedings, losses, obligations, costs and expenses of any
kind or nature whatsoever, known or unknown, contingent or otherwise, arising
out of, or in any way related to the violation of or noncompliance with any
Environmental Laws (relating to (1) the past, present or future ownership,
possession, control or operation of any Property or any asset of the Operating
Partnership or its Subsidiaries, (2) the past, present or future condition of
any site or facility owned, operated or leased by the Operating Partnership or
any of its Subsidiaries, or (3) any Release or threatened Release of any
Hazardous Substances from any such site or facility, including any such Release
or threatened Release which shall occur during any period when the
Administrative Agent on behalf of the Lenders shall be in possession of any such
site or facility following the exercise by the Administrative Agent on behalf of
the Lenders of any of their rights and remedies hereunder or under any related
document), including, without limitation, reasonable attorney and consultant
fees, investigation and laboratory fees and costs ("Indemnified Expenses"), but
excluding therefrom, taking into account all principles of equitable
apportionment, all claims, demands, penalties, fines, liabilities, settlements,
damages, defenses, judgments, suits, proceeds, losses, obligations, costs and
expenses of any kind or nature whatsoever, known or unknown, contingent or
otherwise, arising out of or resulting, directly or indirectly, from (i) the
gross negligence or willful misconduct of such Indemnified Person, or (ii) any
acts or omissions of any Indemnified Person occurring after such Indemnified
Person is in possession of, or controls the operation of, any Property or asset
of the Operating Partnership or any of its Subsidiaries, except to the extent
such Indemnified Expenses arise from any act or omission, condition or event in
existence on or before the date such Indemnified Person is in possession of, or
controls the operation of, any Property or asset of the Operating Partnership or
any of its Subsidiaries, even if the act or omission, condition or event (x) is
not discovered until after such date, or (y) becomes an Indemnified Expense as a
result of a change in any Environmental Law that becomes effective after such
date.
(e) The agreements in Section 8.10(d) shall survive repayment
of the Notes and all other amounts payable hereunder and any termination or
expiration of any of the Credit Facility Documents.
SECTION VIII.11. Hazardous Substances. The Operating Partnership shall
not cause or permit, or permit any Subsidiary to cause or permit, any of its
Property or assets to be used to generate, manufacture, refine, transport,
treat, store, handle, dispose, transfer, produce or process Hazardous
Substances, except in compliance in all material respects with all applicable
Environmental Laws, nor release, discharge, dispose of or permit or suffer any
release or disposal as a result of any intentional act or omission on its part
of Hazardous Substances onto any such Property or asset in material violation of
any Environmental Law.
SECTION VIII.12. Claims. The Operating Partnership shall report to the
Administrative Agent, within fifteen (15) days of the date on which an executive
officer becomes aware of the same, any legal claims against the Operating
Partnership in excess of $1,000,000 over the amount directly covered by
insurance.
SECTION VIII.13. Maintenance of Ownership The Operating Partnership
shall continue to own 100% of the issued and outstanding limited partnership
interests in Holdings and each of the UREs.
SECTION VIII.14. Indebtedness The Operating Partnership shall not, and
shall not permit any of Holdings, the UREs or the G.P. Subs to, create, incur or
suffer to exist any Indebtedness, except to Lenders and the Assumed Debt and
except for the Contingent Consideration Liability.
SECTION VIII.15. Dividends and Distributions The Operating Partnership
shall not make any distributions or pay any dividends on account of its
partnership interests during any fiscal quarter in an amount in excess of 100%
of the Operating Partnership's available funds from operations (as determined in
accordance with industry standards relating to REITs) for the immediately
preceding fiscal quarter (except to the extent such excess dividends or
distributions are attributable to gains from the sale of the Operating
Partnership's assets or are required for the Company to maintain its status as a
real estate investment trust under the Internal Revenue Code); provided,
however, that the Operating Partnership may make distributions and pay dividends
in excess of 100% of available funds from operations for the preceding fiscal
quarter for not more than three (3) consecutive fiscal quarters.
SECTION VIII.16. Assets of Holdings . The Operating Partnership shall
not permit Holdings or the UREs to acquire, own or hold any Property other than
the fee simple interest or leasehold interest in the Subject Property, as
applicable, and assets derived from the ownership of the Subject Property.
SECTION VIII.17. Compliance Certification Within forty-five (45) days
after the end of each calendar quarter, the Operating Partnership shall certify
to Lenders that the Operating Partnership has complied with all covenants
contained in this Article VIII and that, as of the last business day of such
quarter, there existed no Default or Event of Default.
ARTICLE IX.
EVENTS OF DEFAULT
SECTION 9.01. If one or more of the following events (herein called "Events of
Default") shall occur and be continuing:
(a) The Operating Partnership shall default in the payment
when due (whether at stated maturity or upon mandatory or optional prepayment or
otherwise) of any principal of any Loan, or shall default for five (5) Business
Days in the payment when due of any interest on any Loan, any fee or any other
amount payable by it hereunder, whether at the due date thereof or at a date
fixed for prepayment thereof or by acceleration thereof or otherwise; or
(b) Any Event of Default (as defined in the Mortgage
Indenture) shall occur or be continuing; or
(c) The Operating Partnership or any of its Subsidiaries shall
(i) default in the payment of principal of or interest of any other Indebtedness
(other than the Notes or Indebtedness under the Mortgage Indenture) or in the
payment of any Guaranty Obligation (in all such cases, having a principal amount
in excess of $2,000,000 in the aggregate) at any one time to any third party
when due (whether at scheduled maturity or by required prepayment, acceleration,
demand or otherwise) and such default continues after the applicable notice or
grace period, if any, specified in the agreement or instrument relating to such
Indebtedness, or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guaranty Obligation
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, and such default
continues after the applicable notice or grace period, if any, specified in the
agreement or instrument relating to such Indebtedness, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such Guaranty
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or such Guaranty
Obligation to become payable; or
(d) Any representation, warranty or certification made or
deemed made herein or in any other Credit Facility Document (or in any
modification or supplement hereto or thereto) by the Operating Partnership or
any of its Subsidiaries, or in any certificate or document furnished to the
Lenders pursuant to the provisions of this Agreement or any such other Credit
Facility Document, shall prove to have been false or misleading as of the time
made or furnished in any material respect; or
(e) The Operating Partnership shall default in the observance
or performance of any agreement contained (i) in Section 8.02 of this Agreement,
or (ii) in the Pledge Agreement; or
(f) The Operating Partnership or any of its Subsidiaries shall
default in the performance of any of its other obligations under this Agreement
or any other Credit Facility Document and such default shall continue unremedied
for a period of thirty (30) days after notice thereof to the Operating
Partnership by the Administrative Agent, which Default cannot be cured by the
payment of a sum of money; provided, however, that if such non-monetary Default
is susceptible of cure but cannot reasonably be cured within such thirty (30)
day period, and if the Operating Partnership or Subsidiary shall have commenced
to cure such Default within such thirty (30) day period and thereafter
diligently and expeditiously proceeds to cure the same, such thirty (30) day
period shall be extended for such time as is reasonably necessary for the
Operating Partnership or such Subsidiary in the exercise of due diligence to
cure such Default, such additional period not to exceed ninety (90) days; or
(g) The Operating Partnership or any of its Subsidiaries shall
admit in writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
(h) The Operating Partnership or any of its Subsidiaries shall
(i) apply for or consent to the appointment of, or the taking of possession by,
a receiver, custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the benefit
of its creditors, (iii) commence a voluntary case under the Bankruptcy Code (or
the equivalent under the laws of another jurisdiction), (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under the Bankruptcy Code, or (vi) take any corporate action
for the purpose of effecting any of the foregoing; or
(i) A proceeding or case shall be commenced, without the
application or consent of the Operating Partnership or any of its Subsidiaries,
in any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of the Operating Partnership or such
Subsidiary or of all or any substantial part of its Property, or (iii) similar
relief in respect of the Operating Partnership or such Subsidiary under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue undismissed,
or an order, judgment or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect for a period of ninety (90) or
more days; or an order for relief against the Operating Partnership or such
Subsidiary shall be entered in an involuntary case under the Bankruptcy Code (or
the equivalent under the laws of another jurisdiction); or
(j) final judgment or judgments for the payment of money in
excess of $1,300,000 (or the equivalent in another currency) in the aggregate
(exclusive of judgment amounts fully covered by insurance) shall be rendered by
one or more courts, administrative tribunals or other bodies having jurisdiction
against the Operating Partnership or its Subsidiaries and the same shall not be
satisfied or discharged (or provision shall not be made for such satisfaction or
discharge), or a stay of execution thereof shall not be procured, within sixty
(60) days from the date of entry thereof and the Operating Partnership or the
relevant Subsidiary shall not, within said period of sixty (60) days, or such
longer period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal; or
(k) An event or condition specified in Section 8.08 shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a result
of such event or condition, together with all other events or conditions, the
Operating Partnership or any ERISA Affiliate shall incur or in the reasonable
opinion of the Administrative Agent shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or the PBGC (or any combination of the
foregoing) which would have a Material Adverse Effect on the Operating
Partnership or its Subsidiaries; or
(l) (i) Except following the termination or release thereof in
accordance with the provisions of the Credit Facility Documents, the Pledge
Agreement or the Company Pledge Agreement shall, for any reason, cease to be or
not be in full force and effect, or the Company, the Operating Partnership or
any of its Subsidiaries which is a party to the Pledge Agreement or Company
Pledge Agreement shall so assert, (ii) the Lien created by the Pledge Agreement
or Company Pledge Agreement shall cease to be or not be enforceable and of the
same effect and priority purported to be created thereby, or (iii) any Person
shall have (or the Operating Partnership shall assert that any Person has) a
right in the Pledged Junior Bonds prior to or equal to that of the
Administrative Agent on behalf of the Lenders; or
(m) Holdings or the UREs sell, assign, encumber as a security
device or otherwise transfer any interest in the Subject Property, other than
Liens securing that portion of the Assumed Debt due to Northwestern Mutual Life
Insurance Company and Principal Mutual Life Insurance Company; or
(n) If any of the partnership interests or capital stock (as
applicable) of the Operating Partnership, Holdings, any URE or any G.P. Sub
shall be sold, assigned or otherwise transferred or if a security interest or
other encumbrance shall be granted or otherwise acquired therein or with respect
thereto, except to the Administrative Agent for the benefit of Lenders as
provided in this Agreement and the Credit Facility Documents; or
(o) Holdings, any URE or any G.P. Sub shall create, incur or
suffer to exist any Indebtedness of such Person, other than Indebtedness due to
Lenders pursuant to this Agreement or, with respect to Holdings or any URE, the
Assumed Debt of such person as described in the definition of Assumed Debt under
Section 1.01 and further except for the Contingent Consideration Liability; or
(p) The ratio of EBITDA to Debt Service for the REIT Group is
less than 2 to 1; or
(q) The REIT Group's Net Worth is less than $175,000,000 at
any time; or
(r) The ratio of the Total Debt to Total Assets for the REIT
Group is greater than .6 to 1; or
(s) The Company creates, incurs or suffers to exist any Lien,
charge or encumbrance on the Pledged Stock described in the Company Pledge
Agreement; or
(t) Any Default or Event of Default occurs under the Existing
Credit Facility Documents;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (h) or (i) of this Article IX, either or both of the following actions
may be taken: (i) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Operating Partnership declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate; and
(ii) with the consent of the Majority Lenders, the Administrative Agent may, or
upon the request of the Majority Lenders, the Administrative Agent shall, by
notice to the Operating Partnership, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
to be due and payable forthwith, whereupon the same shall immediately become due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the Operating Partnership; and
(2) in the case of the occurrence of an Event of Default referred to in clause
(h) or (i) of this Article IX, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes shall immediately become due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the Operating Partnership.
ARTICLE X.
THE ADMINISTRATIVE AGENT
SECTION X.01. Appointment. The general administration of the Credit
Facility Documents and any other documents contemplated by this Agreement shall
be by the Administrative Agent or its designees. Each Lender hereby irrevocably
designates and appoints PSC as the Administrative Agent of such Lender under
this Agreement and the other Credit Facility Documents, and each such Lender
irrevocably authorizes PSC as the Administrative Agent for such Lender, at its
discretion, to take or refrain from taking such action on its behalf under the
provisions of this Agreement and the other Credit Facility Documents and to
exercise or refrain from exercising such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Credit Facility Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Facility Document or otherwise exist against the
Administrative Agent.
SECTION X.02. Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Credit Facility
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
SECTION X.03. Exculpatory Provisions.
(a) Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Credit Facility
Document, or responsible to the Lenders or to any of them for the consequences
of any oversight or error of judgment, or for any loss, unless the same shall
happen through its or such Person's own gross negligence or willful misconduct,
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Operating Partnership or
any officer thereof contained in this Agreement or any other Credit Facility
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with this Agreement or any other Credit Facility Document or for the
due execution, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, the Notes, or any other Credit Facility Document,
or for the perfection of any security interest contemplated by this Agreement,
any Credit Facility Document or any related agreement, document or order, or for
the designation or failure to designate this transaction as a "Highly Leveraged
Transaction" for regulatory purposes, or for any failure of the Operating
Partnership to perform its obligations hereunder or under any other Credit
Facility Document. The Administrative Agent shall not be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance of any
of the agreements or covenants contained in, or terms or conditions of, this
Agreement or any other Credit Facility Document or to inspect the Property,
books or records of the Operating Partnership.
(b) Neither the Administrative Agent nor any of its directors,
officers, employees, or agents shall have any responsibility to the Operating
Partnership on account of the failure or delay in performance or breach by any
of the Lenders or the Operating Partnership of any of their respective
obligations under this Agreement or the Notes or any related agreement or
document or in connection herewith or therewith.
SECTION X.04. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and it shall be entitled to rely
upon advice and statements of legal counsel (including, without limitation,
counsel to the Operating Partnership), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Credit Facility Document unless it shall first receive such advice or
concurrence of the Majority Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement, the Notes and the
other Credit Facility Documents in accordance with a request of the Majority
Lenders, and any such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
SECTION X.05. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Operating Partnership pursuant to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default." In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Majority Lenders;
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
SECTION X.06. Non-Reliance on Administrative Agent and Other Lenders.X.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorney-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Operating Partnership, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Operating Partnership and made its own
decision to make Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Facility Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, Property, condition (financial or otherwise), prospects or
creditworthiness of the Operating Partnership. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, Property, condition (financial or
otherwise), prospects or creditworthiness of the Operating Partnership which may
come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION X.07. Reimbursement and Indemnification Each of the Lenders
severally agrees (i) to reimburse the Administrative Agent, in the amount of its
proportionate share, for any expenses and fees incurred for the benefit of the
Lenders under the Credit Facility Documents, including, without limitation,
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, and any other expense incurred in connection with the
operations or enforcement thereof not reimbursed by the Operating Partnership or
one of its Subsidiaries, and (ii) to indemnify the Administrative Agent and any
of its directors, officers, employees or agents, upon demand (to the extent not
reimbursed by the Operating Partnership and without limiting the obligation of
the Operating Partnership to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this Section 10.07 (or, if indemnification is sought after the Maturity
Date, ratably according to the amount of outstanding Loans held by each Lender
on the Maturity Date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be imposed on,
incurred by or asserted against it or them in any way relating to or arising out
of this Agreement, any of the other Credit Facility Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by it or them
under or in connection with any of the foregoing; provided, however, that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the gross negligence or willful
misconduct of the Person seeking indemnification. The agreements in this Section
10.07 shall survive the payment of the Notes and all other amounts payable
hereunder.
SECTION X.08. Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Operating Partnership as
though the Administrative Agent were not the Administrative Agent hereunder and
under the other Credit Facility Documents. With respect to its Loans made or
renewed by it and any Note issued to it, the Administrative Agent shall have the
same rights and powers under this Agreement and the other Credit Facility
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
SECTION X.09. Successor Administrative Agent.
(a) The Administrative Agent and the Collateral Holder may
resign as Administrative Agent and Collateral Holder at any time by giving
written notice thereof to the Lenders. If the Administrative Agent or Collateral
Holder shall resign as Administrative Agent or Collateral Holder, as the case
may be, under this Agreement and the other Credit Facility Documents, then the
Majority Lenders shall appoint from among the Lenders a successor agent or
collateral holder for the Lenders, which successor agent shall be approved by
the Operating Partnership, whereupon such successor agent or collateral holder
shall succeed to the rights, powers and duties of the Administrative Agent or
Collateral Holder, as the case may be, and the terms "Administrative Agent" or
"Collateral Holder" shall mean such successor agent or collateral holder
effective upon such appointment and approval, and the former Administrative
Agent's or Collateral Holder's rights, powers and duties as Administrative Agent
or Collateral Holder, as the case may be, shall be terminated, without any other
or further act or deed on the part of such former Administrative Agent or
Collateral Holder or any of the parties to this Agreement or any holders of the
Notes. If no successor Administrative Agent shall have been so appointed by the
Majority Lenders and shall have accepted such appointment, within thirty (30)
days after the retiring Administrative Agent's giving of notice of resignation,
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, with the consent of the Operating Partnership,
which will not be unreasonably withheld, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $250,000,000. After any
retiring Administrative Agent's or Collateral Holder's resignation, the
provisions of this Article X shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent or Collateral
Holder, as the case may be, under this Agreement and the other Credit Facility
Documents.
(b) PSC may at any time and from time to time assign to any of
its Affiliates all or any part of its rights or obligations as Administrative
Agent and/or Collateral Agent under this Agreement, the Notes and the other
Credit Facility Documents. Any such assignment shall not be deemed a resignation
for purposes of Section 10.09(a).
SECTION X.10. Collateral Holder.
(a) Except for action expressly required of the Collateral
Holder hereunder and under the other Credit Facility Documents, the Collateral
Holder shall in all cases be fully justified in refusing to act hereunder and
thereunder unless it shall be further indemnified to its satisfaction by the
Lenders proportionately in accordance with the Obligations then due and payable
to each of them against any and all liability and expense that may be incurred
by it by reason of taking or continuing to take any such action.
(b) Except as expressly provided herein, the Collateral Holder
shall have no duty to take any affirmative steps with respect to the collection
of amounts payable in respect of the Collateral. The Collateral Holder shall
incur no liability as a result of any private sale of the Collateral.
(c) The Lenders hereby consent, and agree upon written request
by the Collateral Holder, to execute and deliver such instruments and other
documents as the Collateral Holder may deem desirable to confirm such consent,
to the release of the Liens and security interests in the Collateral, including
any release in connection with any sale, transfer or other disposition of the
Collateral or any part thereof in accordance with the Credit Facility Documents.
(d) The Collateral Holder shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Collateral Holder accords its own Property, it being understood that
neither the Collateral Holder nor any Lender shall have responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether nor not
the Collateral Holder or any Lender has or is deemed to have knowledge of such
matters, or (b) taking any necessary steps to preserve rights against any
parties with respect to any Collateral.
ARTICLE XI.
MISCELLANEOUS
SECTION XI.01. No Waiver; Cumulative Remedies. No failure on the part
of the Administrative Agent or any Lender to exercise and no delay in
exercising, and no course of dealing with respect to, any right, power or
privilege under this Agreement or any other Credit Facility Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any other Credit Facility
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights, remedies, powers and privileges
provided herein are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
SECTION XI.02. Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three (3) days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Operating
Partnership and the Administrative Agent, and as set forth in Schedule II in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The Operating Partnership: Cali Realty, L.P.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent: Prudential Securities Credit Corp.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Prudential Securities Incorporated
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Prudential Securities Incorporated
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Prudential Securities Incorporated
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With a copy (except in the ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
case of notice of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Borrowings made under ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Section 4.04) to: Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided, however, that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to Section 2.02, 2.05, 2.06, 2.08,
2.09, and 2.10 or 4.01(b) shall not be effective until received.
SECTION XI.03. Expenses. The Operating Partnership agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket third
party costs and expenses incurred in connection with the development,
preparation and execution of, any amendment, supplement, extension or
modification to, or waiver of, this Agreement, the Notes and the other Credit
Facility Documents and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated thereby, and
any term loan or credit facility made by Lenders or any Third Party to refinance
the Loans, including, without limitation, the reasonable fees and disbursements
of counsel, (b) to pay or reimburse each Lender and the Administrative Agent for
all its reasonable costs and expenses including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent and to
the several Lenders and the reasonable fees and disbursements of technical and
other consultants to the Administrative Agent, incurred in connection with (i)
the enforcement or preservation of any rights under this Agreement, the Notes
and the other Credit Facility Documents and any such other documents, (ii) any
Default and any enforcement or collection proceedings resulting therefrom or in
connection with the negotiation of any restructuring or "work-out" (whether or
not consummated) of the obligations of the Operating Partnership hereunder and
(iii) the enforcement of this Section 11.03, (c) to pay, indemnify and hold each
Lender and the Administrative Agent harmless from any and all recording and
filing fees which may be payable or determined to be payable in connection with
the execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the Notes and
the other Credit Facility Documents and any such other documents, (d) to pay all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement,
the Notes or the other Credit Facility Documents, or any related documents, and
(e) all costs, fees and expenses (including fees of the Auditors) associated
with determining the Market Rate or Market Maturity.
The Operating Partnership hereby agrees (i) to indemnify the
Administrative Agent and each Lender and each of their respective directors,
officers, employees, attorneys and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of them (including, without limitation, any and all losses, liabilities,
claims, damages or expenses incurred by the Administrative Agent and each
Lender, whether or not the Administrative Agent or Lender, as the case may be,
is a party thereto) arising out of or by reason of any investigation or
litigation or other proceedings (including any threatened investigation or
litigation or other proceedings) relating to the Loans hereunder or any actual
or proposed use by the Operating Partnership of the proceeds of any of the
extensions of credit hereunder, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation or litigation or other proceedings (but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified), and (ii) not
to assert any claim against the Administrative Agent or Lenders, any of their
respective Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive (as opposed to actual) damages arising out
of or otherwise relating to any of the transactions contemplated herein.
The agreements in this Section 11.03 shall survive repayment of the
Notes and all other amounts payable hereunder and any termination or expiration
of any of the Credit Facility Documents.
SECTION XI.04. Amendments Neither this Agreement, any Note or any other
Credit Facility Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 11.04. The Majority Lenders may, on behalf of all Lenders, or, with the
written consent of the Majority Lenders, the Administrative Agent may, from time
to time, (i) enter into with the Operating Partnership written amendments,
supplements or modifications hereto and to the Notes and the other Credit
Facility Documents for the purpose of adding any provisions to this Agreement,
the Notes or the other Credit Facility Documents or changing in any manner the
rights of the Lenders or of the Operating Partnership, hereunder or thereunder,
or (ii) waive, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify, in such instrument, any
of the requirements of this Agreement, the Notes or the other Credit Facility
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall:
(a) reduce the amount or extend the scheduled date of maturity
(except pursuant to Section 2.10(a)(i)(A)) of any Note or of any installment
thereof, or reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or increase the amount or
extend the expiration date of any Lender's Commitment, in each case without the
consent of each Lender directly affected thereby;
(b) (i) amend, modify or waive (A) any provision of this
Section 11.04 or (B) any provision of Sections 2.06 or 2.07; (ii) consent to the
assignment or transfer by the Operating Partnership of any of its rights and
obligations under this Agreement and the other Credit Facility Documents; or
(iii) reduce the percentage specified in the definition of Majority Lenders, in
each case without the written consent of all the Lenders; or
(c) amend, modify or waive any provision of Article X without
the written consent of the then Administrative Agent.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Operating
Partnership, the Lenders, the Administrative Agent and all future holders of the
Notes. In the case of any waiver, the Operating Partnership, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes and any other Credit Facility
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
Notwithstanding anything to the contrary contained herein, the
Administrative Agent may amend Schedule I or Schedule II hereto to reflect the
addition or deletion of Lenders in accordance with the provisions hereof and,
upon any such amendment, the Administrative Agent shall deliver a revised
Schedule I and Schedule II to each of the Operating Partnership and the Lenders.
SECTION XI.05. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Operating Partnership, the Lenders, the
Administrative Agent, all future holders of the Notes and their respective
successors and permitted assigns.
SECTION XI.06. Assignments and Participations.
(a) The Operating Partnership may not assign or transfer any of its
rights or obligations under this Agreement, the Notes or any other Credit
Facility Document without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more Lenders or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Credit Facility Documents;
provided, however, that prior to any such sale by any Lender to any Participant,
such Lender shall provide written notice to the Operating Partnership of such
Lender's intention to sell a participating interest to such Participant and the
name of such Participant. In the event of any such sale by a Lender of a
participating interest to a Participant, (i) such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible for the performance thereof,
(iii) such Lender shall remain the holder of any such Note for all purposes
under this Agreement and the other Credit Facility Documents, (iv) the Operating
Partnership and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Facility Documents, and
(v) such Participant shall have no right to enforce the obligations of the
Operating Partnership or any of its Subsidiaries relating to the Loans hereunder
(other than under Section 5.01) or to approve (or refrain from approving) any
amendment, modification or waiver of any provision of this Agreement (other than
any amendment, modification or waiver decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled installment of the Loans or any date scheduled
for payment of interest on the Loans or any fees, extending the Commitments or
relating to the release of all or substantially all the Collateral; provided
further, however, in the case of any of the foregoing, that the interests held
by such Participant are directly affected by such amendment, modification or
waiver). The Operating Partnership agrees that if amounts outstanding under this
Agreement and the Notes are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Note; provided further, however,
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as provided
in Section 11.07 as fully as if it were a Lender hereunder. The Operating
Partnership also agrees that each Participant shall be entitled to the benefits
of Sections 5.01, 5.05, 5.06 and 11.03(b)(i) with respect to its participation
in the Commitments and the Loans outstanding from time to time as if it was a
Lender; provided further, however, that (A) such Participant shall have complied
with the requirements of said Sections and of Section 5.07 (as if such
Participant were, for purposes of said Section 5.07, a Lender hereunder), and
(B) no Participant shall be entitled to receive any greater amount pursuant to
any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred. Each Participant will
agree to keep information confidential to the same extent as the transferor
Lender was so required.
(c) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time and from time to time assign to
any of its Affiliates or to any Lender or any Affiliate thereof or to an
additional lender or financial institution (an "Assignee") all or any part of
its rights and obligations under this Agreement, the Notes and the other Credit
Facility Documents pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit D, executed by such Assignee, such assigning Lender and, in
the case of an Assignee that is not then a Lender or an Affiliate thereof, by
the Administrative Agent and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided, however, that, except (i) in
the case of an assignment to another Lender, or (ii) with the consent of the
Operating Partnership, each such assignment shall be in an amount equal to not
less than $5,000,000; provided, further, that prior to any such assignment by
any Lender to any Assignee, such Lender shall provide written notice to the
Operating Partnership of such Lender's intention to make an assignment to such
Assignee and the name of such Assignee. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (A) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (B) the assigning Lender hereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be party hereto).
Notwithstanding anything to the contrary contained herein, an Assignee shall be
entitled to the benefits of Sections 5.01 and 5.05 only if it shall have
complied with the requirements of said Sections (and also complied with the
requirements of Section 5.07).
(d) The Administrative Agent shall maintain at its address
referred to in Section 11.02 a copy of each Assignment and Acceptance delivered
to it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Operating Partnership,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Operating Partnership or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, if required under Section 11.06(c),
by the Operating Partnership and/or the Administrative Agent) together with
payment by the assigning Lender of the Assignee to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance, and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Operating Partnership. On or prior to such effective date, the Operating
Partnership, at its own expense, shall execute and deliver to the Administrative
Agent (in exchange for the Note of the assigning Lender) a new Note to the order
of such Assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder, a new Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Notes shall be
dated the Closing Date and shall otherwise be in the form of the Note replaced
thereby.
(f) The Operating Partnership authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Operating Partnership and its Affiliates which has
been delivered to such Lender by or on behalf of the Operating Partnership
pursuant to this Agreement or which has been delivered to such Lender by or on
behalf of the Operating Partnership in connection with such Lender's credit
evaluation of the Operating Partnership and its Affiliates prior to becoming a
party to this Agreement; provided, however, that no Lender shall be authorized
to disclose such information to any Transferee or prospective Transferee unless
such Transferee or prospective Transferee has agreed in writing to maintain the
confidentiality of all confidential information provided to it (subject to
customary exceptions, such as disclosure to officers, directors, professional
advisors, regulators and similar Persons, disclosure pursuant to law or legal
process, disclosure following the public dissemination of such information by
another Person and disclosure of information provided to such Transferee or
prospective Transferee by a third party); and provided further, however, that,
notwithstanding anything to the contrary contained in this Agreement, neither
the Administrative Agent nor any Lender shall be liable for any violation of the
terms of the foregoing proviso by any other Lender or the Administrative Agent,
as the case may be.
(g) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
SECTION XI.07. Adjustments. If any Lender (a "Benefited Lender") shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, through the exercise of a right of bank's lien, setoff or
counterclaim against the Operating Partnership, pursuant to events or
proceedings of the nature referred to in Article IX(h), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest thereon,
such Benefited Lender shall purchase at par for cash from the other Lenders a
participating interest in such portion of each other Lender's Loan, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefited Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
SECTION XI.08. Survival. The obligations of the Operating Partnership
under Sections 5.01, 5.04, 5.05 and 11.03 shall survive the repayment of the
Loans and the termination of the Commitments. In addition, each representation
and warranty made, or deemed to be made by a notice of any Loan hereunder, in
the other Credit Facility Documents and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the
making of such representation and warranty, and the Lender shall not be deemed
to have waived, by reason of making any Loan, any Default which may arise by
reason of such representation or warranty proving to have been false or
misleading, notwithstanding that the Lender may have had notice or knowledge or
reason to believe that such representation or warranty was false or misleading
at the time such Loan was made.
SECTION XI.09. Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
SECTION XI.10. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement with counterpart signature pages or in any
number of separate counterparts, all of which taken together shall constitute
one and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Operating Partnership and the
Administrative Agent.
SECTION XI.11. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION XI.12. Integration. This Agreement and the other Credit
Facility Documents represent the agreement of the Operating Partnership, the
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Facility
Documents.
SECTION XI.13. GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
SECTION XI.14. Submission to Jurisdiction. The Operating Partnership
hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Credit Facility Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the nonexclusive general jurisdiction of the Courts of the
State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court or forum and agrees not to plead
or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Operating Partnership at its address set forth in Section 11.02 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section 11.14 any special, exemplary, punitive or consequential
damages.
SECTION XI.15. Acknowledgments. The Operating Partnership hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the Notes and the other Credit
Facility Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Operating Partnership arising out of
or in connection with this Agreement or any of the other Credit Facility
Documents, and the relationship between Administrative Agent and Lenders, on the
one hand, and the Operating Partnership, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Facility Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Operating Partnership and the
Lenders.
SECTION XI.16. WAIVER OF JURY TRIAL. THE OPERATING PARTNERSHIP, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE NOTES, THE CREDIT FACILITY DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREIN, AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
Operating Partnership:
CALI REALTY, L.P.
By: Cali Realty Corporation,
its sole general partner
By:
Name:
Title:
Administrative Agent:
PRUDENTIAL SECURITIES CREDIT CORP.
By:
Name:
Title:
Lenders:
PRUDENTIAL SECURITIES CREDIT CORP.
By:
Name:
Title:
SCHEDULE I
COMMITMENTS
Lender Commitment Amount
------ -----------------
Prudential Securities Credit Corp. $80,000,000
-----------------
$80,000,000
SCHEDULE II
ADDRESSES FOR NOTICES
Lender: Prudential Securities Credit Corp.
Funding Requests: Other Matters:
=========================================================== ========================================================
Prudential Securities Credit Corp. Prudential Securities Credit Corp.
One New York Plaza ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: Normal ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
=========================================================== ========================================================
With copies to: With copies to:
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
=========================================================== ========================================================
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
=========================================================== ========================================================
Prudential Securities Incorporated Prudential Securities Incorporated
One New York Plaza ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
=========================================================== ========================================================
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
=========================================================== ========================================================
SCHEDULE III
EXCESS QUALIFIED ASSET VALUE
Allocated Value of Assets
Property Name Value
------------- -----
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ $ 21,577,000
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ 17,370,000
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ 6,319,000
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ 2,955,000
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ 5,869,000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ 20,925,000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ 17,687,000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ 23,112,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ 2,230,000
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ 17,385,000
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ 105,374,000
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇), ▇▇ 12,181,000
-----------
TOTAL VALUE 252,984,000
===========